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Petitioner: PAKISTAN REFINERY LIMITED VS Respondent: MASKATIYA INDUSTRIES (PVT.) LIMITED
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title: PAKISTAN REFINERY LIMITED vs MASKATIYA INDUSTRIES (PVT.) LIMITED Case No.: Suit No,1094 of 2008 Date of Judgment:2010-12-07 Reported As: PLD 2011 Karachi 240 Result: Order accordingly
Judgment ORDER MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of C.M.A. No,7860 of 2008 filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. And C.M.A. No,11551 of 2008 filed by the defendant under Order XXXIX, Rule 4, C.P.C. The plaintiff has filed the instant suit for Declaration, Mandatory, Prohibitory Injunction and 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 ; (t) Costs. 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
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defendant had started construction of its factory on the Plots Nos.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 30-4-1992 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 PointDistance 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-wires to the Rule making powers conferred under section 2 of the Act. The interior ministry's order dated 30-4-1992 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 do not endanger the life, 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
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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 vklnity 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 associate 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 XXXIX, Rule 4 read with section 151, C.P.C. With the prayer to set aside the order dated 21-8-2008 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 Defence Committee of the Cabinet as communicated by Ministry of Interior vide its letter dated 3-4-1992. 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 Ruie 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 (N.-W.F.P.) 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 1-A. The Deputy Secretary referred to a Meeting
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of Defence Committee of Cabinet, in which, it was pointed out that some very essential Key Points of category 1-A and 2-A have become insecure because of unrestricted constructions of building in their vicinity. By reproducing Rule 10 of Civil Defence (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 Messrs 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 M LD 1100. The learned counsel further argued that the order of learned Single Judge was challenged in the High A 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 K 315. Against the concurrent findings, the plaintiff filed Civil Petitions Nos.1852 and 1853 of 2009 in the honourable 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 honourable 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 honourable 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 v. Lahore Improvement Trust, Lahore). This judgment pertains to Article 98 of the Constitution of Pakistan, 1962. The honourable 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 v. 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.
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(3) 1990 M LD 828, (Afroz Ilahi v. K.M.0 and 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 Suits 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 honourable Supreme Court has not decided any question of law, therefore, the judgment passed by the Divisional Bench in High Court Appeal, has not lost its 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 Cantonment Authorities prior to the approval, of the building plan. He farther 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 it its building within prohibited zone. Defendant possesses no threats to the plaintiff. The learned counsel also referred to an Office Memorandum dated 3-1-2009 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 Messrs Barrett Hodgson Pakistan Limited and Messrs 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 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 honourable 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 v. 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
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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 section 4 of the Specific Relief Act. (2) 2004 M LD 227 (Mrs. Halima Tahir v. 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 v. 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., v. 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 (AI-Jehad Trust v. 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,
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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…
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