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Petitioner: SINDH INSTITUTE OF UROLOGY AND TRANSPLANTATION and others VS Respondent: NESTLE MILKPAK LIMITED and otherss
Court Name: Sindh High Court Judge(s): Syed Ali Aslam Jafri Title:SINDH INSTITUTE OF UROLOGY AND TRANSPLANTATION and others vs NESTLE
MILKPAK LIMITED and otherss Case No.: Suit No,567 and C.Ms. Nos.3717 and 5343 of 2004 Date of Judgment:2004-11-29 Reported As: 2005 CLC 424 Result: Order accordingly Judgment ORDER ' By this order I propose to dispose of C.M.A. No,3717 of 2004 under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. Filed on behalf of the plaintiffs praying therein that pending the disposal of the suit the defendant No,1 be restrained from raising any construction with a view to set up and operate a bottled-water factory in Deh Chuhar area of Karachi, known as "Education City" as the same is contrary to educational and health use, for which such land can be used. The other application is C.M.A. No,5343 of 2004 filed on behalf of the defendant No,1 under Order XXXIX, rule 4 read with section 151,. C.P.C. For vacation of stay order, dated 24-5-2004 through which defendant No,1 has been restrained from initiating any commercial/industrial activity including set-up of a bottling-plant in the area. In support of both these applications affidavits have been filed by the respective parties, which have been controverted through counter-affidavits and rejoinders. Since the out-come of both these applications shall be same, hence both are being disposed of by this single order. 2. The facts as disclosed in the plaint appear to be that plaintiff No,1 is a statutory organization established under the Sindh Institute of Urology and Transplantation Ordinance, 1990 providing free comprehensive and modern medical care in kidney diseases and transplantation to the patients predominantly from the rural and poorer urban strata. It is also performing educational activities aimed at educating the training doctors, nurses, technicians etc. Plaintiff No,2 is a recognized and established charitable foundation incorporated under section 42 of the Companies Ordinance, 1984, running a teaching hospital in Pakistan which is at par with some of the most prestigious institutions abroad. Plaintiff No,3, is a University established under The Agha Khan University Order,
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1983 and has been a pioneer in Pakistan to bring quality education which is at par with what some of the best international universities have to offer. Plaintiff No,4 was established as a University known as SZABIST in the year 1995 under a Provincial Statute. It is a center of excellence in the field of science and technology offering Ph.D. Courses and providing excellent higher education to the people of Pakistan. 3. It is the case of the plaintiffs that being induced by the representations made by the Province of Sindh/defendant No,2 and its functionaries that the land contiguously in Deh. Chuhar area of Karachi was going to be designated for exclusive use of health and educational purposes and named as "Education City", the plaintiffs invested huge amount of their money and acquired large portion of the land in the said area. The area acquired by plaintiff No,1 is 100 acres, by plaintiff No,2 is 653 acres, by plaintiff No,4 is 300 acres, apart from other institutions rendering services in the field of Health and Education, such as Sindh Madressatul-Islam Board's for Quaid-e-Azam Public School 200 acres, Newports Institute of Communication and Economics 20 acres, Sir Syed University of Engineering and Technology 200 acres, Shaukat, Khanum Memorial Cancer Hospital Research Centre 20 acres and Ziauddin Medical University 25 acres. 4. The plaintiffs claim to have been informed by defendants Nos.2 and 3 that the said land earmarked for Education City would not be permitted to be used for any purpose other than the stated amenities of health or education which induced the plaintiffs to invest in the "Education City" Some of the plaintiffs were leased out land by defendants Nos.2 and 3 on specific condition that they would invest a minimum of United States fifty million dollars and in fact the institutions have invested considerable amount in acquiring the land. Plaintiffs Nos.2 and 3 have arranged United States $200 million for investment in the proposed educational Faculty of Arts and Sciences sought to be set-up in the Education City. It is stated that the Governor of Sindh as well as City Nazim fully supported and promoted the idea of Education City and affirmed that collaboration between all stake holders and City Government is very important. Such public declaration was made by Governor of Sindh in the year 1999. Photo copies of the minutes of the meeting held in the auspices of defendant No,5 on 25-11-2002, 7-1-2003, 20-3-2003, 2-7-2003 and 29-1-2004 have been filed as Annexure "B-1" to "H-5". In order to ensure the integrity of the Education City and to ensure that no one buys land in the Education City area -under any mistake or misapprehension, the defendant No,5 issued Office Order, dated 17-2-2003 ordering that "henceforth no transaction, regarding the Sale of the land, Renewal of the lease, Conversion, Exchange and transfer shall be allowed" in Deh Chuhar. Photocopy has been annexed and marked as "E". 5. The plaintiffs have further stated that defendant No,1 is the Pakistan chapter of the multinational Nestle, it has a major and possibly an overwhelming majority share in the bottled water industry in Pakistan. It is the largest packager of milk in Pakistan and in order to increase its profitability in its water business elected to set-up a water bottling plant close to Karachi City by tapping into and making free use of sub-soil water aquifer lying underneath the Education City area in order to make huge profit. Defendant No,1 has acquired 20 acres of land in the Education City area, though such acquisition is legally defective and does not vest any right in defendant No,1. It had applied for and was allotted a comparatively sma ll area of 20 acres of land in Na-class No,108, Deh Chuhar for industrial/commercial purposes under section 10(1) of the Colonization of Government. Lands Act, 1912, vide letter dated 25-10-2003 after bye-passing Industries Department. A 99 years lease has been granted to defendant No,1 out of Na-class No,108, however, the said number was changed from Na-class No,108 to Na- class No,106 and such corrigendum has been issued illegally and unauthorizedly with mala fide intentions by defendant No,3/Secretary, Land Utilization Department, Government of Sindh. In fact this piece of 20 acres has been carved out of the land measuring 300 acres out of Naclass No,106 of Deh Chuhar already granted to plaintiff No,4 and the defendant No,1 cannot claim any right in Na-class Survey No,106.
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6. The construction and setting-up of the plant has been objected on various grounds including that it is in violation of section 12 of Pakistan. Environmental Protection Act, 1997 and free use of sub- soil water aquifer in huge quantity by defendant No,1 can cause serious prejudice to the availability of water for use of plaintiffs and other institutions to be set-up in the area. Exploitation of natural resources for financial gain by defendant No,1 by tapping into the aquifer through tube-wells and draining out the same in environmentally degrading the non-sustainable use of a natural resource as by its own showing defendant No,1 was attracted to the area on account of availability of sub- soil aquifer and its commercial exploitation. The second objection is that defendant No,1 has not obtained requisite permission under the Canal and Drainage Act, 1873, inter alia, under sections 16 and 20 thereof. It is further contended that defendant No,1 has started raising construction on the land without seeking prior approval of K.B.C.A. And the, construction being illegal can be sealed and demolished under section 7-A of . The S.B.G.D. Ordinance. The set-up of a factory in the area would prove to be a complete nuisance to the education and health institutions as it will create traffic jams and accidents are bound to happen whereas good education and health require a quiet, peaceful and serene atmosphere. It would be a harbinger for other industrial units and factories and Education. City would effectively converted into another industrialized zone. The whole Education City area would become polluted, over crowded, dangerous and dirty area. It is lastly urged that the institutions would not have made any investments in the Education City area if they knew that the land therein would be allowed to be put to industrial or commercial use. It has therefore, been prayed that it be declared that defendant No,1 have no right, title or interest in Na- Class No,106, Deh Chuhar Karachi. A direction has been sought against defendant No,1 to vacate possession of 20 acres of land in Na-Class No,106 Deh Chuhar Karachi. Cancellation of such agreement dated 12-11-2003 and all other title documents has also been prayed. A further declaration has been sought, that defendant No,1 cannot build, construct or set-up an industrial unit or factory in Deh Chuhar area and should be restrained for doing so. Another declaration has been sought that the land in Education City area in Deh Chuhar Karachi can only be allotted for education and or health services in accordance with the statement of conditions and applicable law and rules. A further direction has been sought against defendants Nos.2, 3 and 4 not to allot any land in Deh Chuhar or Education City area of Karachi for other than education or health purposes. 7. In their written statement as well as counter-affidavits to the application under Order XXXIX, rules 1 and 2, C.P.C.,. Defendant No,1 has disputed the claim of the plaintiffs and pleaded that suit is bad of misjoinder of parties as plaintiffs Nos.3 and 4 have no cause of action because plaintiff No,3 does not own any land in the area while land allotted to plaintiff No,4 stands cancelled under section 3 of the Sindh Urban, State Land (Cancellation, Allotment, Conversion and Exchange) Ordinance, 2000. Furthermore, suit cannot proceed in view of the provision of section 10 and Order XI, C.P.C. As the matter in issue in this suit was also an issue of C.P. No,D-1419 of 2003 pending before this Court which was filed on behalf of plaintiff No,4 and in which defendant No,1/Nestle was a respondent. Locus standi of the plaintiffs to file this suit has also been, called in question. It has been pleaded that the suit is based on false, frivolous, vexatious allegations and has been filed to harass and pressurize the answering defendant, therefore, it is liable to be dismissed with special costs under section 35(A), C.P.C. On merits it is denied that the plaintiffs were induced by defendant No,2/Province of Sindh or its functionaries that the land situated in Deh Chuhar area of Karachi was going to be designated for the, exclusive use of health and educational purposes. The factum of setting-up of "Education City" as claimed by the plaintiffs has been vehemently denied as no such project was approved by the Sindh Government at any stage. It is stated that on the contrary in early 2001 the Development Council for Industrial Revival of Sindh, headed by the then Sindh Governor, Muhammad Mian Soomro, approached Nestle for several times to make
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investment in Sindh Province as a result of which investment worth millions of Dollars has been made and Mr. Shams Lakha who is the Chief Executive of the Agha Khan Hospital was a Member of said Council. So for allotment of land in favour of plaintiff No,4 (SZABIST) is concerned, it has already been cancelled. It is further stated that there is no record to indicate that any such decision had been ever taken by the Province of Sindh or the Secretary (LU) Department to establish "Education City", and no such notification has been issued for the said purpose, as no such project was ever approved and it appears to be merely a wish and desire of the plaintiffs which did not materialize. Mere suggestion from certain quarters or the City District Government who is not owner of the land is not sufficient. It has been vehemently urged that there is no record that the then Governor of Sindh Mr. Moinuddin Haider or subsequent Governor Mr. Muhammad Mian Soomro or the present Governor Dr. Ishrat-ul-Ebad ever took any decision for creation of so- called Education City nor they had jurisdiction to do so. Even otherwise any such decision will not effect the rights of Nestle. It is further stated that land allotted to the plaintiffs is lying vacant and no construction exists on the same. The proposal for establishment of so-called Education City made by defendant No,5/City District Government Karachi on 17-2-2003 was just a proposal which was never materialized. Provincial Government being the owner of the land alone is competent to take any such decision. It is further stated that the concerned District Officer Revenue has clarified the position of City District Government in respect of land allotted to Nestle vide letter dated 27-5-2004 when the matter regarding the lay-out plan measuring twenty acres of land allotted to Nestle was forwarded to him. His observation has been reproduced which is as follows:-- ' "You are requested to please go ahead as there is no ban on the industrial unit, i,e, Nestle, which has already been approved by the Government. The decision, already taken vide minutes No,DCO/CDGK/2003-209 dated 2-7-2003 shall not apply to this unit." 8. It is stated that Nestle installed its factory and bottling project in pursuance of the permission granted by the Government of Sindh vide letter, dated 25-10-2003 as modified by letter dated 29- 10-2003 which clearly stated that land was being allotted for industrial/commercial purposes. The defendant No,1 stated the cost of the project as US$ ten million and the activity has to provide pure and clean water not only to the people of Karachi but to the people of others areas of Pakistan as well. So far the correction in Na-Class number is concerned, it is stated that such correction was legally and validly made by the Secretary (LU) Department vide corrigendum dated 19-11-2003 and the original lease deed in favour of Nestle was also amended to reflect the correct NaClass number on 1-7-2004. It is further stated that the interest of plaintiff No,4 in the land has been fully protected by an order dated 10-3-2003 passed by a Division Bench of this Court in No,D-1419 of 2003 filed by plaintiff No,4 (SZABIST) wherein it has been observed that, "all learned counsel, therefore, agree that land in Na-Class No,106 be properly surveyed and an area of 300 acres may be tentatively identified for the purpose of giving effect to the allotment order in favour of petitioner". Demarcation of land by the Survey Department was also ordered. It is further stated, that in fact allotment was being made in unsurveyed land and it was not possible for the petitioner/plaintiff No,4 to claim a right in a specific piece of land but they could only claim a right to be allotted a certain amount of land in certain area, as observed by the Honourable Division Bench in the above-referred C.P. No,D-1419 of 2003, hence the right of plaintiff No,4, has been settled by the Court in the said petition and their right over the piece of the land in occupation of the defendant No,1 was not recognized as the factory was completed before 24-5-2003. Defendant No,1 has claimed to obtain approval from the authority under SBCO, 1979 and no violation of Pakistan Environmental Protection Act, 1997 has been made. It is denied that Canal and Drainage Act, 1873 applies to the factory constructed by defendant No,1. It is also defined that use of land by Nestle would be a nuisance to the institutions or students or patients who in any case do not exist at present. In fact the factory installed will meet the highest environmental standards as will be
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evident from the report annexed with the written statement. It has been denied that number of trucks which will be involved in carriage to and from the plant will be in such a number as to adversely affect the traffic. According to a study made by said defendant, over 4,000 trucks already pass that link road in a day, whereas the number of trucks of Nestle will be only 25-30 per day. It is denied that any pollution will be caused by the factory. 9. Written statement has also been filed by the Environmental Protection Agency/defendant No,4 stating therein that Nestle Green Water Factory producing bottled water neither falls under ,Schedule-I (category of list of projects requiring lEE) nor Schedule-II (category of projects requiring EIA) of Pakistan Environment Protection Agency; Review of .Initial Environmental Examination and >environment Impact Assessm ent Regulation, 2000 framed under the Pakistan Environment Protection Act, 1997. Likewise the project also does not fall in the category titled, "Other projects requiring IEE or EIA" as it is not likely to cause any adverse environment effects. As such EPA's approval is not required under PEPA, 1997. It is further stated that in fact case of defendant No,1 does not attract any action by defendant No,4 as such no action was taken as there was no violation of any of Regulations, 2000, or PEPA, 1997. It is also stated that there is no cause of action against defendant No,4 and pit is liable to be dismissed against the said defendant. 10. Affidavits and counter-affidavits as well as rejoinders have filed on behalf of the plaintiffs and defendant No,1 reiterating the stand taken by them in support of their respective contentions. 11. In support of his plea for grant of temporary injunction till the disposal of the suit, Mr. Qazi Faiz Isa learned counsel for the plaintiffs has argued on the same lines and elaborated various pleas taken in the plaint. His first contention is that the piece of land which has been granted illegally to defendant No,1 after issuing a corrigendum in respect of Na-Class No,106 for setting up an industrial unit, is part and parcel of the land allotted/earmarked for Education City and could not be granted for any other purpose. In this connection learned counsel has referred to the decisions taken in(?) the Provincial Cabinet meetings of the Sindh, held on 24-4-2001 and 6-10-2001 under the Chairmanship of the Governor of Sindh. Decision on Item No,(3) of Agenda No,6 taken in Cabinet meeting dated 16-10-2001, is reproduced hereinafter:- "Link road area between National and Super Highway will be declared Education and Health City. Land on Link Road will only be allotted to Education and Health Sector Institutions and allied amenities like a bus terminal, hotels, and petrol pumps." 12. Learned counsel has further argued that the industrial unit if allowed to function it shall be a hazard to the environment and the peaceful atmosphere of a locality which has been earmarked only for setting-up educational institutions and health services. There will be constant nuisance and traffic problem in the area as the material produce by the defendant No,l shall be transported through trucks. It shall be a danger to the students, teaching faculty and the patients. Learned counsel has further argued that in view of the reports from the concerned authorities/experts constant drawing of underground water in a huge quantity for the purpose of cleaning and bottling shall adversely affect the rights of the plaintiffs. The whole of the aquifer will become disturbed as a result of drawing of water in such a huge quantity for a commercial use by defendant No,1 and it will deprive the plaintiffs of their future needs. Learned counsel has further argued that as a result of the process of separating the salt and other ingredients from the water before bottling it, a huge quantity of refuse shall adversely affect the entire locality and the lands belonging to the plaintiffs and other in the adjoining areas will be adversely affected. The water table shall go down in the area due to constant drawing of water through tube-wells in such a huge quantity. Learned counsel has placed: on record during his arguments an affidavit of Al-Kazim Mansoor, Chief Executive of Soilmat engineers, a multi-dimensional firm which amongst other things conducts soil investigation, piling and pile load tests, who has stated that he has carried out Hyderogeological and Geotechnical Investigations for design of various water scheme. He has further stated that to
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have read and analyze the document entitled "Nestle Milkpak Ltd. Karachi. Environment impact study NEMS B3-4", a document filed by Nestle Milkpak Ltd. Which is not an environmental impact study and after seeing such document he has stated that the said document show that Nestle plant shall extract water from two tube-wells in the quantity of 148 Imperial gallons per minute or 306 million liters per year as total yearly extraction and out of the extracted water process proposes to bottle for sale 228 million liters per year. The water is proposed to be extracted from an aquifer situated under an arid land, where there is very little rainfall. In order to preserve the integrity and the longevity of an aquifer it is essential that sustainable use thereof is made, or not to extract more than the "safe-yield". In terms of use of water resources "a balance must exist between the amount of water entering and leaving the system". Safe-yield as defined in the attainment and maintenance of a long-term balance between the amount of ground water withdrawn (pumped) annually and the annual amount of recharge. Safe yield is a management concept that allows water users to pump only the amount of ground water that is replenished naturally through precipitation and surface water seepage. He has opined that drawing of large quantity of water by a party, the environmental cost is borne by others who have lands in the area or who may be entitled to use the water of the aquifer. According to him, by extracting the water as proposed by Nestle shall tantamount to squandering a natural treasure trove. A water which is not owned by anyone person or entity. Learned counsel has referred to a judgment from the High Court of Kerala (India) delivered by K. Balakrishnan Nair, J. In Writ Petition No, 3492 of 2003(G) to show that petition filed by Perumattay Grama Panchayat against State of Kerala and Hindustan Coca- Cola Beverages Private Limited and others was allowed justifying the cancellation of the licence of Coca-Cola Company in view of excessive exploitation of ground water by the said Company resulting in acute drinking water scarcity in Perumatty Panchayat and nearby places. In a very detailed judgment after examining the point as to whether decision of the Panchayat that Company should not be permitted to extract ground water was legal, it has been held as under:-- ' "Ground water is a national wealth and it belongs to the entire society. It is a nectar, sustaining life on earth. Without water, the earth would be a desert. .At present, there is no law governing the control or use of ground water, submits the learned Senior Counsel for the 2nd respondent. The Kerala Ground Water (Control and Regulation) Act, 2002 has not so far been enforced. Therefore, the senior counsel submits, the 2nd respondent is free to extract any amount of ground water, which is available underground in the land owned by it. As a good neighbour, it may have a moral obligation not to make excessive use of ground water, so as to affect the persons in the neighbourhood, it is submitted. Legally there are no fetters on the right of the 2nd respondent to extract ground water, it is pointed out. The Rule of law saves every action of the individual, which is not expressly prohibited by law, it is contended. ' Therefore, unfettered right is claimed to extract ground water." 13. Principle 2 of Stockholm Declaration, 1972 has been referred which reads as follows:-- "The natural resources of the earth, including the air, water, land, flora and fauna especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate." 14. A reference has also been made to an observation from the Supreme Court of India in the case of State of Tamilnadu v. Hind Stone 1981 (2) SC 205 at p.212 which is reproduced as follows:-- "(6) Rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by anyone generatopm. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of nation in the best possible way. It is in the interes of mankind. It is in the interest of the nation." 15. A view was taken by the Court in the said report that the resources like air, sea water, forests stand covered under…
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