PLJ 2007
Present: Anwar Zaheer Jamali And Syed Zawwar Hussain Jaffery, JJ.
NESTLE MILK PAK LTD.--Appellant
versus
SINDH INSTITUTE OF UROLOGY and others--Respondents
H.C.A No. 271 of 2004, decided on 1.9.2006.
----S. 12--Easements Act, (V of 1882), S. 7--Civil Procedure Code, (V of 1908), O.I, R. 8 & S. 151--Specific Relief Act, (I of 1877), Ss. 39, 42 & 53--Suit for declaration and cancellation of documents--Specified area for `Education City'--Effect on environment and residents of area--Public interest litigation--Scope--Plaintiff/respondents (Health & Educational Institutions) filed a suit for declaration and cancellation of documents against defendants/appellants, to the effect that a certain area, to be termed as "Education City", was to be reserved for the purpose of establishing health and educational institutions/projects and one of the defendants (water bottling company) had acquired land in "Education City" in a legally defective manner--Plaintiffs averred in their suit that; defendant/company was setting up a water bottling plant over land in-question for their use of sub-soil water/aquifer in huge quantities; that act of defendant--Company was likely to cause scarcity of water for use of plaintiffs and other institutions to be set up in that area in future; that defendant`s project was in violation of S. 12 of Act, 1997--Defendant had not obtained any requisite permission under Canal and Drainage Act, 1873--Defendant, denied assertions of plaintiffs as to; any illegality committed by it in acquiring ownership of land; legality of title of plaintiffs in respect of land claimed by them; existence of "Education City" in the area; causing of any damage to sub-soil water/aquifer due to operation of their water bottling plant over its land--Construction of building and installation of plant by it over its land was in accordance with law; that it had obtained necessary permission from concerned Agencies including Environmental Protection Agency; that project was intended to provide portable water to citizens of Pakistan; that suit, which was allegedly not maintainable, was filed by plaintiff with delay and that under S. 7 of Easements Act, 1882, every owner of land had absolute right to enjoy and dispose of his immovable property, subject to any law, for the time being in force and while there was no law in Pakistan prohibiting defendant from using sub--soil water in quantity they needed to extract by installation of two tubewells in defendant`s own land--Validity--Held: Extraction of alleged brackish water from aquifer by defendant in huge quantities was not to disturb aquifer and environment of area and it was difficult to believe that having of land in area was to remain within their legal rights to extract such huge quantities of water on plea of being brackish without causing prejudice/harm to interests of other residents of the area, particularly when area in-question was situated in a country where natural source of water for aquifer i.e. raining, was negligible and highly insufficient--Plaintiffs were not responsible for delay in approaching the Court, rather filing of written statement was delayed by defendant, so as to avail maximum benefit of order of the Court.
[P. 47] B & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2, S. 151--Pakistan Environmental Protection Act, 1997, S. 12--Area specified for education city--Plaintiffs/respondents had succeeded to make out prima facie case in their favour and had also met with other ingredients i.e. balance of convenience, irreparable loss and injury, which justified grant of interim injunction in their favour--Appeal was dismissed. [P. 47] A
Civil Procedure Code, 1908 (V of 1908)--
-----O.I, R. 8--Public interest litigation--Locus standi--Scope--Question of locus standi and personal grievance of plaintiffs in the form of filing suit, had lost its significance in view of the fact that already steps had been taken in the suit to bring it within the category of representative suit and controversies raised in suit were also in the nature of public interest litigation rather than to be confined to the interest of plaintiff. [P. 48] D
1995 SCMR 650; PLD 1993 Kar. 190; 2000 CLC 1276; 2002 PLC
(C.S.) 889; 1978 1 All ER 625; AIR 1919 Patna 503; (1843-60) All ER Rep 77;
(1895) AC 587; 2004 (1) KLT 731 (Kerala High Court); (1981) 2 Supreme Court
Cases 205; (1997) Supreme Court Cases 388; (1983) 33 Cal. 3rd 419 (Supreme
Court of California); 6 Cal. 3d 251 (Supreme Court of California); 2004 SBLR
Sindh 763; 2001 YLR 1139); 34 LJCP 352; PLD 1978 Kesh. 157; PLD 2002 Lah. 555
and AIR 1937
PLD 1983 Kar. 387 and 1992 CLC 2540 rel.
Mr. Khalid Anwar, Advocate for Appellant.
Qazi Faiz Isa, Advocate for Respondents.
Anwer Mansoor Khan, A.-G., Sindh for Respondents No. 5 and 6.
Nemo for the remaining Respondents.
Date of hearing: 1.9.2006.
Order
Anwar Zaheer Jamali, J.--This High Court Appeal under Section 15 of Ordinance X of 1980 is directed against the order, dated 30th November, 2004, in Suit No. 567 of 2004, passed by learned single Judge of this Court, whereby he confirmed the interim order, dated 24-5-2004, as extended from time to time, passed on C.M.A, No. 3717 of 2004 by granting the said application and also dismissed C.M.A. No. 5343 of 2004 filed on behalf of the appellant.
2. Briefly stated, facts relevant for the disposal of this appeal are that on 24-5-2004, Respondents No. 1 to 4 jointly instituted a suit for declaration, permanent injunction and cancellation of documents against the appellant and Respondents No. 5 to 8, with the following prayers:--
"(a) Declare that the Defendant No. l has no right, title or interest in Na-Class No. 106, Deh Chuhar, Karachi;
(b) Direct the
Defendant No. 1 to vacate possession of 20 acres of land in Na-Class No. 106,
Deh Chuhar,
(c) Cancel `Lease Agreement' dated 12-11-2003 and any all other documents of title in favour of Defendant No. 1;
(d) Declare that the Defendant No. 1 cannot build, construct or set up an industrial unit or factory in Deh Chuhar area;
(e) Restrain the Defendant No. l from building, constructing or setting up an industrial unit or factory in the Deh Chuhar area;
(f) Declare that
the land situated in the area of Deh Chuhar,
Or alternatively, declare that the land situated in the area of Deh Chuhar, Karachi can only be allotted in accordance with the statement of conditions and applicable law, rules and condition;
(g) Direct the
Defendants No. 2, 3 and 5 not to allot any land in Deh Chuhar or
(h) Grant such other additional, further or better relief(s) as may be deemed appropriate by this Hon`ble Court in the facts and circumstances of the case; and
(i) Grant costs."
3. In their plaint, Respondents No. 1 to 4/plaintiffs stated that; Respondent No. 1 is a statutory organization established under the Sindh Institute of Urology and Transplantation Ordinance, 1990, which is one of the largest public sector health organizations in the country, providing comprehensive and modern medical care in kidney diseases and transplantation; Respondent No. 2 is a recognized and established charitable foundation incorporated under Section 42 of the Companies Ordinance, 1984, which is associated in setting up health sciences complex in Pakistan aimed at promoting human welfare, and for his purpose, it has set up the first teaching hospital in Pakistan at par with: some of the most prestigious institutions abroad; Respondent No. 3 is a university established under the Aga Khan University Order, 1983, and is a pioneer in Pakistan, bringing quality education of international standard. Respondents No. 2 and 3 are working in close collaboration with each other and providing not only high quality health care, but also education and training to doctors, nurses and teachers to serve the citizens of Pakistan and of other developing countries; Respondent No. 4 is a university established under the Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology Act, 1995, which has been set up as a centre of excellence in the field of science and technology and is being administered entirely on a no-profit basis in the spirit of public service. Further case of Respondents No. 1 to 4 is that, being induced by the representations of Respondent No. 5/Defendant No. 2 and is functionaries, the lands situated contiguously in Deh Chuhar area of Karachi are going to be designated for the exclusive use of health and educational purposes, they invested huge sums of their moneys and acquired large portions of land in the said area. Respondent No. 5 and 6 while allotting such lands to the Respondents No. 1 to 4 did so for the particular amenity purpose of education and health. Various institutions, including Respondents No. 1 to 4, have thus acquired land holdings in the said area as under:-
"Name of Institution Land in Acres
(1) Plaintiff No. 1 Sindh Institute of 100 acres
Urology and Transplantation
(2) Plaintiff No.
2 Aga
(3) Plaintiff No. 4. Shaheed Zulfiqar Ali 300 acres
Bhutto Institute of Science and Technology
(4) Sindh Madressahtul-Islam Board`s 200 acres
(5) Newports Institute of Communication 20 acres
and Economics
(6) Sir Syed University of Engineering and 200 acres
Technology
(7) Shaukat Khanum Memorial Cancer and 20 acres
Research Centre
(8) Ziauddin Medical University 25 acres."
4. It is also the case of Respondents No. 1 to 4 that they were given a clear understanding that the whole area to be termed as "Education City", located in Deh Chuhar, will be reserved for catering to acute public demand for and need of education and health and will not be permitted to be used for any other purpose and such understanding had prompted them to work out their strategy for huge investments in foreign exchange to manage their respective projects/institutions in the field of education and health care.
5. The grievance of the Respondents No. 1 and 4 against the appellant is that the appellant being motivated to increase profitability in their water bottling business have decided to set up a water bottling plant close to Karachi city, aimed at saving considerable transportation costs in supplying bottled water to Karachi city, in addition, by tapping into and making free use of sub-soil water "aquifer" lying underneath the education city area of Deh Chuhar. For this purpose, appellants have acquired land in the education city area after ban was imposed by Respondent No. 8 on 17-2-2003. To achieve their goal, they have acquired 20 acres of land in the education city area (Deh Chuhar) that too in a legally defective manner. The land was apparently allotted to them by Respondent No. 6 from Na-Class 108, Deh Chuhar pursuant to letter, dated 25-10-2003 and he had issued such letter, dated 29-10-2003, mentioning therein allotment of 20 acres of land from Na-class 108, Deh Chuhar, for industrial/commercial purposes. Later on, 99 years' lease was also granted to the appellant out of same Na-Class 108, but subsequently by some paper work Na-Class 108 was changed to Na-Class 106 and such corrigendum was issued by Respondent No. 7 illegally, and with mala fide intention. According to the further case of Respondents No. 1 to 4, the area of 20 acres so assigned to the appellant is carved out of the land measuring 300 acres out of Na-Class No. 106, Deh Chuhar earlier granted to Respondent No. 4, therefore, appellant cannot claim any right in the said land. It is also their case that in violation of Section 12 of the Pakistan Environmental Protection Act, 1997 and other laws the appellants have constructed and are setting up a water bottling plant over the disputed land for their use of sub-soil water/aquifer in huge quantities, which is likely to cause scarcity of water for use of Respondents No. 1 to 4 and other institutions to be set up in that area. Such act of the appellant would be thus an exploitation of natural resources for their financial gains by tapping water from the aquifer through tubewells and draining out the same in a manner which will be hazardous and harmful to the interests of Respondents No. 1 to 4, other landholders and residents of the area. The appellants have also not obtained requisite permission under the Canal and Drainage Act, 1873, and even for raising construction, they have not obtained any prior approval of building plans from KBCA and other concerned authorities. To substantiate their assertions the Respondents No. 1 to 4 placed on record documents Annexure `A/I' to `S' as per separate list filed with the plaint.
6. On the other hand, appellant/Defendant No. l in their written statement filed in Court on. 18-11-2004, apart from raising certain preliminary objections about the maintainability of the suit, strongly denied the assertions of the Respondents No. 1 to 4 as regards; any illegality committed by them in acquiring ownership/lease of 20.0 acres of land from Naclass No. 106, Deh Chuhar, Karachi; legality of the title of Respondents No. 1 to 4 in respect of the lands claimed by them existence of any Educational City in the area; causing of any damage to the aquifer due to the proposed operation of their water bottling plant over their 20.0 acres lease land from Na-Class No. 106, Deh Chuhar violation of any provisions of Environmental Laws, Canal and Drainage Act, and Building Bye-Laws of KBCA. They further pleaded that the whole process of purchase of 20.0 acres land and construction of factory building and installation of water bottling plant therein has been undertaken strictly in accordance with law, which will be beneficial for the residents of the area in many ways. Thus it had given no cause of grievance or locus standi to the Respondents No. 1 to 4 to agitate any grievance by way of this suit.
The plaint in the suit was accompanied with an application under Order XXXIX Rules 1 and 2 read with Section 151, C.P.C. being C.M. A. No. 3717 of 2004, praying therein for grant of following interim relief in the matter:
"For reasons stated in the accompanying Affidavit it is prayed on behalf of the Plaintiffs above named that this Hon`ble Court may pending the disposal of this suit be graciously pleased to restrain the Defendant No. l from raising any construction with a view to set up and operate a bottled-water factory in the Deh Chuhar area of Karachi, known as `Education City`, as the same is contrary to educational and or health use, which such land can be used for."
7. In the supporting affidavit to this application submitted by Mr. Karim Hussain, the Project Director of Respondent No. 3, he reiterated in' detail the same facts as stated in the plaint. In addition to it, he further stated that Respondents No. 1 to 4, based on such facts, have strong prima facie case and balance of convenience in their favour, and they would suffer irreparable loss and injury in case the interim relief prayed for by them was not allowed till the final disposal of the suit.
8. In denial to the assertions of Respondents No. 1 to 4 on 9-8-2004 appellant filed counter-affidavit of Mr. Shahid Siddiqui, the Head of Corporate and Legal Affairs of Nestle Milkpak Ltd. He is his detailed counter-affidavit, besides refuting the factual assertions of Respondents No. 1 to 4 regarding any defect in the title of the appellant in respect of their 20.0 acres of land from Na-Class No. 106, Deh Chuhar or any adverse effect on the rights of Respondents No. 1 to 4 or of other people of the locality due to extraction of water from aquifer by the appellant, by installation of two tubewells and water bottling plant at site, also challenged the maintainability of the suit on various legal and factual grounds. To justify and substantiate the assertions of the appellants, alongwith the counter-affidavit of Mr. Shahid, appellant also placed on record photostat copies of documents Annexures `A' to `G`. which relate to their correspondence with Respondents No. 5 to 8, their lease agreement with Respondent No. 5, copy of C.P. No. D-1419 of 2002 (the petition filed by Respondent No. 4 against the appellant and Respondents No. 5 to 7) etc.
9. On behalf of Respondent No. 5 their Deputy Secretary, from Land Utilization Department also filed his counter-affidavit on 31-8-2004, challenging the maintainability of the suit on various legal grounds and justifying grant of land to the appellant after completion of legal formalities.
10. In reply to such counter-affidavits submitted on behalf of the appellant and some other respondents. Respondents No. 1 to 4/plaintiffs submitted two affidavits-in-rejoinder of Mr. Karim Hussain Noor Muhammad, dated 17-8-2004 and 3-9-2004, each spreading over twenty typed pages accompanied with a bundle of other documents.
11. Moreover, on 9-4-2004 appellants counsel also moved an application under Order XXXIX Rule 4 read with Section 151, C.P.C., seeking vacation of order, dated 24-5-2004, which was again accompanied with the affidavit of Mr. Shahid Siddiqui, the Head of Corporate and Legal Affairs of the appellant. To such application, (C.M.A. No. 5343 of 2004), on 17-8-2004, a counter-affidavit was submitted by Mr. Karim Hussain Noor Muhammad. In addition to it, affidavit of Mr. Al Kazim Mansoor, Chief Executive Soilmat Engineers was also filed to highlight technical aspects of the project of the appellant and its expected consequences over the environment of the area. To counter such assertions on 7-10-2004 the appellant filed counter-affidavit of Dr. JEAN-LUC BONJOUR, Senior Hydro-geologist for "Nestle waters" based at France, wherein he narrated in detail the view point of the appellant in this regard. To such affidavit again another affidavit-in-rejoinder of Mr. Al Kazim Mansoor was filed on 20-10-2004, wherein he attempted to dislodge and refute, the assertions of the technical expert on behalf of the appellant. These counter-affidavits/rejoinders, spreading over dozens of typed pages, were accompanied with a bunch of further documents, to justify the reasoning procured from different sources.
12. The learned Single Judge while passing the impugned order seems to have made detailed examination of all such material placed before him and after hearing the learned counsel for the parties, has passed the impugned order assigning therein his reasons for the grant of interim relief in favour of the Respondents No. 1 to 4. It is against such order of the learned Single Judge granting C.M.A. No. 3717 of 2004 and dismissing C.M.A. No. 5354 of 2004 in Suit No. 567 of 2004 that the instant appeal has been preferred.
13. Mr. Khalid Anwar, learned counsel for appellant, arguing this appeal in a lucid manner, has made following submissions:--
(a) Respondents No. 1 to 4 have neither any locus standi nor they are aggrieved party against proposed extraction of water or the water bottling plant installed by the appellant over Na-Class 106 Deh Chuhar, as they do not hold any title documents in respect of respective lands claimed by them.
(b) There is no existence of any "Education City" as alleged by the respondents, as mere consideration or discussion on this subject at various governmental levels, would not substantiate such plea.
(c) The title of the appellant in respect of 20 acres of land from Na-Class 106. Deh Chuhar Karachi is based on a registered deed. In case there was any mistake in its identity/location or Na-Class number, necessary corrigendum has been issued by the official Respondent No. 7: correction in the lease documents has been accordingly effected; appellants are in actual physical possession of that land, therefore, the Respondents No. 1 to 4 have no right to dispute the title of the appellants over such land or even to its purpose of utilization.
(d) The extraction of underground brackish water by the appellant company at the depth of 600 to 700 ft., by way of installation of two tube-well will, in no manner, affect the aquifer or environment in the area, as alleged by the Respondents No. 1 to 4. To fortify this view, he made detailed reference to the counter affidavit of Dr. Jean-Luc Bonjour, Senior Hydro-geologist of the appellant-company and the documents annexed thereto. Learned counsel further made reference to illustration (g) to Section 7 of Easements Act, 1882 to show that every owner of land has absolute right to enjoy and dispose of his immovable property, subject to any law, for the time being in force, while there is no such law in Pakistan prohibiting the appellant from using the sub-soil water in the quantity, they need to extract by installation of two tube-wells in their own lands.
(e) Construction of the building and installation of plant by the appellant over their lands, are in accordance with law, and after obtaining necessary permission from KBCA and other concerned Government agencies, including Environmental Protection Agency.
(f) The case of COCA COLA Industries from Indian jurisdiction strongly relied by the learned single Judge in his impugned order, is distinguishable and has little relevancy to the controversy involved in the present case.
(g) The Respondents No. 1 to 4 while filing the instant suit have not approached the Court with clean hands as they have suppressed pendency of other Petition No. 1419 of 2003 and passing of interim order, dated 10-3-2004 therein, which had disentitled them from grant of any interim relief in the form as sought in the present suit.
(h) The project of the appellants, when in operation, will, on one hand, provide potable water to the citizens of Pakistan, more particularly of Karachi city, which are already short of such high quality drinking water and will also provide job opportunities to hundreds of people of that area, while grant of injunction will undermine all these beneficial aspects of appellants project.
(i) The case of the Respondent No. 4 (SZABIST) is distinguishable from the case of other respondents as their lands were cancelled vide letter, dated 30-10-2003. Though such action has been challenged by them through Constitutional Petition No. D-1419/03, but it is still pending for adjudication, with no final title in favour of Respondent No. 4.
(j) Institution of instant suit from the side of Respondents No. 1 to 4 was delayed, which is yet another ground, disentitling them for grant of interim relief. To fortify his submissions, learned counsel made reference to Section 7(g) of the Easements Act and also placed reliance on the following cases:--
(1) Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650).
(2) Pakistan
International Airlines Corporation v. Messrs Hazir (Pvt.) Ltd. (PLD 1993)
(3) Pirjee Muhammad Naqi v. Messrs Pakistan State Oil Corporation (2000 CLC 1276).
(4) Muhammad Suleman v. Azad Government and 5 others (2002 PLC (C.S.) 889)
(5) Macshannon v. Rockware Glass Ltd. (1978) 1 All ER 625).
(6) Jahar Mal . G.M. Tritchard (AIR 1919 Patna 503).
(7) Chasemore v. Richards (1843-60) All ER Rep 77.
(8) Mayor and Co.
of
14. In his reply arguments, Mr. Qazi Faiz Isa made
detailed reference to the pleadings of the parties, affidavits,
counter-affidavits, affidavits in rejoinder and bunch of documents placed on
record by both the parties contesting the suit. He contended that except mere
denial of appellant that no prejudice will be caused to the Respondents No. 1
to 4 and other residents of the area due to installation of water bottling
plant by the appellant over their disputed 20 acres of land, all facts, figures
and circumstances of the case, lead to an irresistible conclusion that tempted
with financial benefits, the appellants are installing such water bottling
plant in the area, which will deprive all other allottees/owners of the lands
and residents of the area from the use of sub-soil water by destroying the
aquifer and also the environment of the area. Learned counsel made specific
reference to the affidavits and affidavits in rejoinder of Messrs Karim Hussain
Noor Muhammad, Al-Kazim Mansoor and bunch of documents attached thereto, to
highlight some technical aspect of the case relating to "aquifer" and
to justify their conclusion adverse to the claim of appellant. Referring to
page 765 of the Court file, which is typed page three of the affidavit of Dr.
Jean-Luc Bonjour and its reply in the form of affidavit in rejoinder filed by
Al Kazim Mansoor (page 781), learned counsel dilated upon the meaning of
brackish water and argued that the appellants are trying to distort the
facts/realities to take undue advantage of the situation. Replying to the plea
of locus standi of the Respondents No. 1 to 4 in filing the present suit, he
contended that the title of Respondents No. 1 to 3 in respect of their lands is
clear and duly supported from the documents placed in the suit file and further
due to stay order granted by this Court in favour of Respondent No. 4 in terms
of the order, dated 10-3-2004 passed in C.P. No. D-1419 of 2003, their rights
in respect of 300 acres of land granted to them earlier are also intact. He
also made reference to the site sketch available at page 383 of the Court file
to show the location of disputed land of the appellant, right in the heart of
"
15. Making comparative study of the expected foreign investment to be made on behalf of Respondents No. 1 to 4 in comparison to the alleged investment of $10 million by the appellant, learned counsel contended that the whole alleged investment made by the appellant will be recovered within a short period of one year in case they are allowed to operate their water bottling plant in the area, but it will be at the heavy cost of environmental hazards and other losses to the local people, while on the other hand the future expected investment even only from the side of Respondents No. 1 to 4 will be 40 to 50 times more as detailed in the plant and other documents, therefore, the appellant should not be much worried about the welfare and betterment of the people of the locality and their employment as portrayed by them, which is nothing but crocodile tears.
16. Learned counsel replying to the other contentions of Mr. Khalid Anwar as regards suppression of material facts from the Court, while instituting the present suit, made reference to page 349 of the Court file to show that the reference of such order was duly made and noted by the Court while passing initial order in favour of respondents on 24-5-2004. Explaining the promptness in the institution of the suit, learned counsel particularly made reference to the Court order, dated 10-3-2004 allowing construction to the appellant, from which date within two months and fifteen days, the present suit was instituted. He also criticized the conduct of the appellant by showing that the counter affidavit to the injunction application C.M.A. No. 3717 of 2004, was submitted by the appellant after delay of 75 days, and written statement was filed after about five months, so that in the meantime construction work may be speeded up and completed. In the end, learned counsel placed reliance upon the following cases to add force to his submissions:--
(1) Perumatty
Grama Panchayat v. State of
(2) State of Tamil Nadu v. Hind Stone (1981) 2 Supreme Court Cases 205
(3) M.C. Mehta v. Kamal Nath-(1997) 1 Supreme Court Cases 388
(4) National
Audubon Society v.
(5) Marks v.
Whitney-6
(6) Ardeshir
Cowasjee v.
(7) Shehri v.
(8) Gaved v. Martyn (34 LJCP 352)
(9) Gul Haider v. Asat (PLD 1978 Peshawar 157)
(10) Anjum Irfan v. Lahore Development Authority (PLD 2002 Lahore 555)
(11) Asrabulla v. Kiamatulla (AIR 1937 Calcutta 245)
17. Mr. Anwar Mansoor Khan, Advocate-General Sindh, on behalf of Respondents No. 5 and 6 strongly supported the impugned order of the learned single Judge and contended that the process of correction in the Na-Class number from 108 to 106, Deh Chuhar, undertaken by official respondents without prior approval of the Cabinet, is wholly illegal and unwarranted by law. When confronted with the map of the area, learned counsel conceded to the location of 20 acres of shifted land of the appellant being not only within the limits of purported "Education City" but from the same area of 300 acres, which was earlier allotted to the Respondent No. 4 and is now subject-matter of pending C.P. No. D-1419 of 2003. In the end, he contended that it is only the temptation of financial gains of the appellant-company, which is a commercial venture, that all things have been managed by them to the serious prejudice of the interests of the local people and of the Respondents No. 1 to 4 who have approached this Court with their genuine grievances against the appellant.
18. Mr. Khalid Anwar in his reply arguments again seriously questioned the legal rights of the Respondents No. 1 to 4 and contended that the observations made by the learned single Judge in his impugned order have no nexus to the controversy involved in the suit, therefore, without following the guidelines and well recognized principles for grant or refusal of injunction, much weight cannot be attached to such order, which is thus liable to be set aside. In the end, learned counsel contended that the documents produced by the appellant in relation to the environmental issue and approval of their building plans from KBCA etc. are valid documents, which entitles them for raising construction at site, which has already been completed. He also made reference to Article 140 of the Constitution of Pakistan to challenge the stand taken by the learned Advocate-General Singh, which according to him, is in conflict to the decisions of the Respondents No. 5 and 6, who are being represented through him.
19. Having heard, and noted above in detail, the respective contentions of the learned counsel and perused the bulky record available before us, we find, that, among others, following controversies of serious nature, relating to both, questions of law and facts, are involved in the matter, which would need thorough investigation and adjudication after recording of evidence and providing due opportunity of hearing to the parties in litigation.
(a) Whether Respondents No. 1 to 4 hold lawful title in respect of lands in Deh Chuhar, as claimed by them.
(b) What is the effect of pendency of Constitutional Petition No. D-1419 of 2003 in respect of 300 acres of land from Deh Chuhar earlier allotted to Respondent No. 4, out of which now 20 acres is subject-matter of dispute in the present suit.
(c) Whether the appellant is lawful owner/lessee of 20 acres of land from Na-Class 106, Deh Chuhar and change of location, if any, or number in their documents is lawful.
(d) Whether construction of building vis-a-vis its approval/regularization, installation of two tube-wells and a water bottling plant at site has been undertaken by the appellant strictly after meeting the requirement of various statutes applicable in this regard.
(e) Whether the extraction of aquifer water by the appellant in huge quantity will not affect or harm the rights of the Respondents No. 1 to 4 and other residents/owners of the land in Deh Chuhar, Karachi.
(f) Whether there is any substance in the plea of Respondents No. 1 to 4 about the commitment of Government of Sindh regarding "Education City" in the said area and if so, what will be its effect.
(g) Whether under the cover of easement right, the appellant can be permitted to extract huge quantities of water from the aquifer.
(h) Whether operation of water bottling plant of appellant will not be hazardous from environmental point of view.
20. Thus, at this stage, after going through the material placed on record and the case-law cited at the bar, we cannot resist but to say that the Respondents No. 1 to 4 have succeeded to make out prima facie case in their favour and have also met with the other ingredients; i.e. balance of convenience and irreparable loss and injury, justifying grant of interim injunction in their favour, as ordered by the learned single Judge through impugned order. Moreso, as in legal terminology connotation) "prima facie case" cannot be equated with "indefeasible case". If any case-law is needed to fortify this view, reference can be made to the case of Muhammad Matin v. Mrs. Dino Majekji Chinoy and others (PLD 1983 Karachi 387) and Mrs. Naz Shaukat Khan and 3 others v. Mrs Yasmin R. Minhas and another (1992 CLC 2540).
21. In the instant case, leaving part the expert opinion of Messrs Al-Kazim Mansoor and Jean-Luc Bonjoum in the form of their respective affidavits, carrying divergent views, documents produced in support thereof and their line of reasonings, which are yet to be tested at the gauge of cross-examination, it is hard to believe that extraction of alleged brackish water from the aquifer by the appellant in such huge quantities, as detailed by the Respondents No. 1 to 4 in their documents (about 148 imperial gallons per minute/306 million liters per year), not denied by the appellant, will not disturb the aquifer and environment of the area. It is also hard to swallow that party having only 20 acres of land in the area would be within their legal rights to extract such huge quantities of water on the plea of being "brackish" (which plea is yet to be proved) without causing harm/prejudice to the interest of other residents of the area, particularly when the area in question is situated in a country where natural source of water for aquifer, i.e. raining, is negligible and highly insufficient. The question of locus standi and personal grievance of the Respondents No. 1 to 4 for bringing the cause before this Court by way of suit has also lost its significance in view of the fact that already steps have been taken in the suit to bring it within the ambit of Order I, Rule 8, C.P.C., i.e., representative suit, and the controversies raised through this litigation, are also in the nature of public interest litigation, rather than confined to the interest of Respondents No. 1 to 4/plaintiffs.
22. It is pertinent to mention here that the site-sketch of the area placed on record by Respondents No. 1 to 4 relating to purported "Education City" and Na-Class No. 106 and 108, Deh Chuhar, Karachi, which is not a disputed document, shows existence of 20 acres of land claimed by the appellant from the same land, which was earlier granted to Respondent No. 4, and now subject-matter of pending Constitutional Petition No. D-1419 of 2003. It will also not be out of place to mention here that the learned Advocate-General Sindh has taken a firm stand before us, thereby disputing legality of the title of the appellant over 20 acres of land claimed by them from Na-Class No. 106, Deh Chuhar, contrary to the stand taken by Respondent No. 6 in their counter-affidavit filed in the suit. The plea of delay in approaching the Court, which has been urged to disentitle the Respondents No. 1 to 4 from grant of interim relief also has no force, as rightly replied by Mr. Qazi Faiz Essa. Record of the suit proceedings is clearly indicative of the fact that suit was filed by Respondents No. 1 to 4 within three months to the order, dated 10-3-2004 passed in C.P. No. D-1419 of 2003, whereby appellant was allowed to raise construction at their own risk, but written statement was delayed and filed by appellant on 18-10-2004. So as to avail maximum benefit of order, dated 10-3-2004. These are some of the material aspects of the case involved in the present appeal, which adversely affect the claim of the appellant and cannot be lightly brushed aside at this stage.
23. While going through the impugned order passed by the learned single Judge, we have further noticed that the learned single Judge has judiciously applied his mind to each and every relevant aspect of the matter and aptly discussed the case-law on the subject in his order to justify grant of interim relief in favour of Respondents No. 1 to 4. Mr. Khalid Anwar also could not pinpoint any material shortcoming, arbitrariness or illegality in the exercise of such discretion by the learned single Judge.
24. The case law cited by the learned counsel Mr. Khalid Anwar is also distinguishable and not of much help to the case of appellant.
25. In view of the above discussion, we find no legal infirmity to disturb the impugned order. Accordingly, this appeal is dismissed, however, with directions to the learned single Judge to expedite further proceedings in the suit and ensure its disposal within one year from the date of this order.
26. Before parting with this order, we would like to observe that we have refrained from entering into detailed, discussion with reference to some of the contentions raised before us by learned counsel for the parties so as to avoid prejudice to the case of either party in the suit at the time of further proceedings.
(Rafaqat Ali Sohal) Order accordingly.