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Petitioner: PAKISTAN REFINERY LIMITED VS Respondent: INTERNATIONAL SCHOOL OF CHOUEIFAT through Principal Officer and another
Court Name: Sindh High Court Judge(s): Khalid Ali Z. Qazi Title:PAKISTAN REFINERY LIMITED vs INTERNATIONAL SCHOOL OF CHOUEIFAT
through Principal Officer and another Case No.: Suit No,1046 and C.M.As. Nos.7585 and 7985 of 2008 Date of Judgment:2009-05-15 Reported As: 2009 YLR 2000 Result: Applications dismissed Judgment ORDER ' KHALID ALI Z. QAZI, J.- C.M.A. No,7585 of 2008: This is an application under Order XXXIX Rules 1 and 2 read with sections 151, C.P.C, praying therein to restrain the defendant (and any person acting for, under or on behalf of the defendant) from commencing, initiating and/or continuing any type of construction activity on the Plot bearing Survey No,82, Deh Dih, Tapo Ibrahim Hyderi, Near Pakistan Refinery Limited, Korangi Creek Road, Karachi admeasuring 3 acres or thereabout. 2. Crux of the facts as stated by the plaintiff in supporting affidavit of the listed application are that plaintiff i.e, Pakistan Refinery Limited (PRL) is a public limited company which is engaged in, inter alia, the operation of a refinery and is the principal supplier of refined oil (and other petroleum products) to the Pakistan Army, Pakistan Air Force, Pakistan Navy, Karachi Airport, Domestic Industry, Power Generation Sector and the Oil Marketing Companies since the commencement of its operations in 1961. It has been classified as a key point Installation 1-A which means that no structure can be raised at the least within 200 yards without the prior clearance of the key point Intelligence Division (Inter Service Intelligence). In fact, security concerns dictate that it should not be not less than on kilometer. 3. The defendant has started construction of a school (the School) on Plot bearing Survey No,82, Deh Dih, Tapo Ibrahim Hyderi, Near Pakistan Refinery Limited Korangi Creek Road, Karachi (the Plot) in utter and blatant violation of the provisions of the Civil Defence Act, 1952 (the Act), the Civil Defence (Special Powers) Rules, 1951 ("the 1951 Rules") and the decision of the Defence Committee of the Cabinet as communicated by the Ministry of Interior vide their letter dated 30-4-1992 to the Home Secretary of all the provinces (the Directive). It is further stated that the school is being
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developed in close proximity to PRL and other industrial establishments in a high risk industrial area thereby endangering the health, safety and lives of hundreds of children, teachers and support staff who will eventually be admitted into or will work in the school. The defendant has started construction despite being aware of the provisions of the Act, 1951 Rules and the Directive. Plaintiff is involved in the refining and storage of crude oil. The process of refining crude oil takes place at extremely high temperatures and extremely high pressures. Hence, it is the norm (and in many countries it is mandatory) that oil refineries are established in an industrial area which is at some distance from residential and other non-industrial establishments (e.g. School and hospital) so as to minimize the risk of injury or death to members of the public, school children and patients in case of an outbreak of fire or an explosion. It is submitted that* one kilometer is reasonable distance to minimize the risk. Put differently, in case of a fire or explosion at a refinery, other industrial establishments are better prepared to deal with the situation as compared to a school. Furthermore it is obviously far more difficult to swiftly evacuate small children instead of factory workers. Keeping in mind the importance of the petroleum industry and the critically important role it plays in the economy through sustainable supplies of petroleum products and also in times of war and emergency and otherwise and given the disasters and havoc caused by the accident at the Union Carbide facility in Bhopal, India the Federal Government pursuant to Rule 10 of the 1951 Rules issued a directive on 30-4-1992 (the Directive) requiring that all construction within 200 yards of a category 1-A key point installation (such as the plaintiff) can only be carried out with the prior approval of the key point Intelligence Division. The afore-said Directive of the Federal Government was communicated to the various authorities at the provincial level by the Home Department (Government of Sindh) with a direction to strictly implement the said directive especially in case of key points involving inflammable or explosive materials and noxious or poisonous gases. 4. It is further stated that plaintiff has put up several signs around its premises informing the general public about the directive. However, despite the 1952 Act, the 1951 Rules, the directive and the signboards, the defendant has initiated construction of a school on the plot with complete disregard to the risk it poses to the health, safety and lives of hundreds of children, teachers and support staff who will eventually be admitted into or working in this profit making institution. It is critically important to note that the defendant has not obtained clearance from the Key Point Intelligence Division (KPID) of the Inter Service Intelligence (ISI) which clearance is obviously supposed to be obtained prior to the commencement of construction and not after it. It may also be added that cognizant of the ever increasing pollution in the environment with the consequential damage to citizen health, the Ministry of Petroleum and Natural Resource (Govt, of Pakistan) decided to take concrete steps of reduce pollution in the environment. Numerous studies have established the advisability of reducing the Sulphur content in fuel. Therefore the Government issued a directive to all oil refineries (including the plaintiff) to take immediate measures to reduce the content of Sulphur in petroleum products by a specified deadline. The Govt, has also decided that any refinery which has not complied with the said directive will be penalized by removing the tariff protection enjoyed by the same and compelling it to reduce its price sufficiently so as to make it unprofitable. All the oil refineries in Pakistan (including the plaintiff) have therefore decided to upgrade their facilities to meet the deadline set by the Government of Pakistan in relation to the reduction of Sulphur content in petroleum products. However, the upgradation process is an extremely costly and complex procedure, which will require a major expansion in the refinery. The estimated cost of the expansion will be approximately U.S. $ 450 Million which is presently equivalent to Rs,31,500,000,000 (Rupees thirty one billion, five hundred million). This will be brought in as Foreign Direct Investment and will be one of the largest foreign investments ever made in the history of the country.
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5. It is further stated that upgradation will have multiple benefits for the citizens of Pakistan. Firstly it will lead to a significant reduction of the Sulphur content in petroleum products and this in turn will reduce pollution and thereby decrease the risk to the health of our citizens, secondly, as noted above, it will bring important foreign investment of the tune of $ 450 million into the country. Thirdly, it will be possible to reduce our imports of High Speed Diesel because after the up-gradation it will become possible to convert Fuel Oil into High Speed Diesel. This will naturally reduce our trade facility and thereby strengthen the Pakistani Rupee vis-a-vis other foreign currencies. Finally a failure to carry out the upgradation may result in the plaintiff's refinery closing down thereby causing huge losses to the national economy and irreparable damages to the indigenous supply of petroleum products. It is further stated that as noted above, the plaintiff's technical advisors have categorically refused to proceed with the upgradation if there are any schools close by, therefore, the plaintiff would be unable to proceed with the upgradation, which as has been explained above is as critically important national project. The plaintiff would be deprived of the tariff protection it currently enjoys leading it to suffer ruinous losses and, in fact, it might even have to shut down its operations entirely. The plaintiff would also be put a disadvantage compared to its competitors who would have in the meaning upgraded their own facilities. Thus construction of the school in such a high risk zone would both endanger the lives of the innocent children who would attend the school as well as prevent the completion of this vital national project. Given that the construction of the school is illegal in the presence of the directive. 7(sic). In contrast to the contentions raised in C.M.A. No,7585/2008 by the plaintiff, the defendant filed Counter Affidavit and rebutted as well as denied the facts mentioned hereinabove and stated that the suit of plaintiff is based on misstatement, mala fides and ulterior motives which from the face of it is a plethora of lies which is instituted by the plaintiff just to create harassment and build pressure upon the defendant, just to usurp the land of answering defendant while concealing true and real facts from the Court, whereas from the whole contents of plaint no cause of action has ever accrued to the plaintiff against answering defendant in any manner at any occasion of suit of the plaintiff being not maintainable and entertainable. Is liable to be buried at inception and defendant be granted compulsory costs for dragging him into vexation litigation. 8. It is stated by the defendant that answering defendant has no nexus or concern with the alleged property consisting upon survey No, 82 which allegedly is near or close to the plaintiff premises or might be bounded/butted as alleged by the plaintiff which prima facie strengthens the submissions of answering defendant as correct and true and sufficiently proves the malafides, bad faith, ulterior motives of the plaintiff as from the averments of the plaint the plaintiff intends to seek restraining order upon property comprising of survey No,82, which may be hazardous or dangerous to the privacy/secrecy/security of the plaintiff as disclosed in para 2 of the plaint as well as para 5 of the affidavit under reply. Therefore, plaintiff's alleged claim is hit with the principle of "Approbate and Reprobate". Further, the pleas of plaintiff are contrary and contradictory with each other and further the plaintiff has tried to mislead the Court by creating confusion in respect of alleged property. It is further stated that defendant is a foreign investor and has obtained lease hold right of the subject property with proper approvals from the Government of Sindh as well as from the concerned authorities, Cantonment Board with in whose reach/jurisdiction the subject property and the concerned Cantonment has also accorded its consent/permission/ approval for the utilization of subject land for educational purposes which would ultimately be a good source of bright future/career of new generation which at present is the dire need of our country to improve and upgrade literacy rate in the society for which all the volunteers like that of defendant must- appreciate and uphold to promote this cause but the plaintiff being a public limited company is adamant to push back and discourage such peoples due to its high handedness and blackmailing attitude which must be condemned by all forums.
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9. It is further stated by the defendant that in the given circumstances it is clearly proved that plaintiff has got no prima facie in this case nor balance of convenience in its favour nor any alleged irreparable loss may accrue to it, rather it will be answering defendant who shall face hardships, substantial and irreparable loss if the project of answering defendant is stepped by any tactics of the plaintiff. 10. Against the aforesaid counter affidavit to the listed application, plaintiff filed rejoinder alleging therein over the attorney of the defendant. It is further stated that various Government "departments/agencies have repeatedly confirmed in writing that the plaintiff is a key point installation. Further none of the document filed by the defendant (including the Government of Sindh allotment letter) describes the impugned plot as bearing Survey No,24. Further as is clear from the sketch map attached with the Government of Sindh allotment letter that the plot on which the defendant has been carrying out construction is located on the southern side of the plaintiff premises, behind the proposed site of Rugby School and is located in Deh Dih, Karachi and is the same plot shown in the map attached as Annexure-C to the plaint. It is, however, important to note that the defendant has confirmed that it is carrying on construction at the location indicated in Annexure-C to the plaint. Furthermore the defendant continued to carry on construction in violation of the stay order passed by this Court on 5-8-2008. It is further stated that the defendant has not denied the photographs of impugned plot that have been annexed to the plaint as Annexures D to D/7. This is tantamount to a clear admission that the plot displayed in the photographs is the very plot which is in the defendant's possession and is the site for the construction activity stayed by this Court, 11. C.M.A. No 7985 of 2008: This is an application under Order XXXIX, Rule 2 read with section 151, C.P.C, and Article 204i of the Constitution read with sections 3 and 5 (and all other enabling provisions) of the Contempt of Court Act, 1976 praying therein to proceed against the Chief Executive/Managing Director/Principal Officer of the defendant for contempt of this Court for his wilful, deliberate and contumacious disregard, defiance and disobedience of the order of this Court dated 5-8-2008 as well as direct the Nazir to attach the plot bearing Survey No,82, Deh Dih, Tapo Ibrahim Hyderi, near Pakistan Refinery Limited, Korangi Kreek Road, Karachi. 12. Brief facts as stated in supporting affidavit of listed application are that defendant had started construction on plot bearing Survey No, . 82, Deh Dih, Tapo Ibrahim Hyderi, near Pakistan Refinery Limited, Korangi Creek, Karachi, in utter and blatant violation of the provisions of the Civil Defence Act, 1952, the Civil Defence (Special Powers) Rules, 1951 (the 1951 Rules) and the decision of the defence committee of the cabinet as communicated by the Ministry of Interior vide their letter dated 30-4-1992 to the Home Secretaries of all the provinces ("the Directive"). By means of its order dated 5-8-2008 this Court was pleased to restrain the defendant from inter alia continuing any type of construction activity on the said plot. Copy of the said order was duly served on the defendant. Notwithstanding the order of this Court, the defendant is continuing with the construction of the school on the said plot. It has, if anything further increased the pace of construction. Further, the aforesaid conduct amounts to gross contempt of Court. Despite the clear and specific orders of this Court, the defendant has wilfully, deliberately and recklessly chosen to act in defiance thereof. The cavalier attitude towards and disregard and disrespect of this Court is manifest. It is stated that no junior officer of the defendant would dare to engage in such blatant defiance of the orders of this Court unless such conduct was sanctioned at the highest level, namely the Chief Executive of the defendant. It is further stated that it is necessary for the plot to be attached by the Nazir of this Court so as to ensure that no further construction takes place at the plot in violation of this Court's order. 13. In reply to the listed application, the defendant filed counter affidavit stating therein that application under reply filed by the plaintiff is based on misstatement, falsehood, ulterior motives
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and bad faith of the plaintiff having no relevancy with the true facts, therefore, all such allegations adversely effecting over rights and interest are specifically denied. Further the defendant has not made any construction to any plot of Survey No, 82, Deh Dih, Tapo Ibrahim Hyderi, Korangi, Karachi nor defendant is in possession of any piece of land in Survey No,82 whereupon plaintiff allegedly intends to get stay order, it is however clarified that defendant's school is under construction since the year 2007 and that also situated at a piece of land of Survey No,24, which has no nexus with survey No, 82 therefore any alleged construction on survey No, 82 for which plaintiff intends to obtain restraining order is not within the knowledge of answering defendant therefore no question of any alleged contempt occurs. It is further submitted that in the plaint the plaintiff has mentioned defendant's address whereupon defendant has never carried out any business nor the same premises is in his occupational possession and the plaintiff intentionally tried to mislead the C6urt by giving incorrect and fictitious address and deliberately caused the service upon the said address and by making foul pay and deliberate misstatement has obtained the injunctive order dated 5-8-2008 which was neither in his knowledge nor had been in receipt of any such summon/notice of this Court as he has not been carrying any business from the alleged address as mentioned in the cause title of the plaint but plaintiff by concealment of facts has obtained such order and intentionally did not comply with the orders of this Court in respect of providing address of the defendant, as per the record of the Court file. 14. It is further alleged that plaintiff has been praying for obtaining restraining order of property bearing Survey No,82, whereas practically he has been misusing the name of defendant's school which is not on Survey No, 82. However, this is matter of fact that defendant's school construction is carried out on survey No,24 and defendant has been in possession of the legal title and lawful documents, so also proper approvals and sanctions from the concerned cantonment, so also permission from Government of Sindh. Therefore, it is prayed that attachment of defendant's property situated at survey No,24 is all together distinguishable from the property as narrated by the plaintiff in para-2 of plaint so also in the injunction application. Further, defendant's school is under construction since the year 2Q07 and from the pleading of plaintiff it intends to stop construction now started by someone on property at Survey No,82 as per averments made in the plaint. 15. It is further stated that defendant as per record has not been in any receipt of any notice from this Court not had any knowledge about institution of the present suit earlier, therefore, no question of any contempt arises nor defendant accepted any such disobedience or violation as alleged by the plaintiff which all is based on conjecture, surmises, ulterior motives and bad faith of the plaintiff, therefore, the instant application based on falsehood and misstatement and is liable to be dismissed with compulsory costs. 16. In reply to the above counter affidavit of the listed application for contempt, the plaintiff filed rejoinder and denied the contentions raised by the defendant and reiterated more or less the same contents, which have been mentioned in the supporting affidavit of the application under Order XXXIX Rules 1 and 2 C.P.C. 17. I have heard Mr. Rashid Anwer, learned counsel for the plaintiff and Mr. Dur Muhammad Shah, learned counsel for the defendant and minutely examined the material placed on record. 18. Mr. Rashid Anwer, learned counsel for the plaintiff has argued the matter on the same line which has been stated in the memo. Of plaint and supporting affidavits of both the listed applications. He contended that plaintiff is a public limited company and is the principal supplier of refined oil and other petroleum products to the Pakistan Army, Pakistan Air Force, Pakistan Navy, Karachi Airport, Domestic Industry, Power Generation Sector and the Oil Marketing Companies since the commencement of its operations in 1961. He contended that 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
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prior clearance of the key point Intelligence Division. He argued that defendant has started construction of a school on Plot bearing Survey No, 82 Deh Dih, Tapo Ibrahim Hyderi, near Pakistan Refinery Limited Korangi Creek Road, Karachi, in utter and blatant violation of the provisions of the Civil Defence Act, 1952, the Civil Defence (Special Powers) Rules, 1951 and the decision of the Defence Committee of the Cabinet as communicated by the Ministry of Interior vide their letter dated 30-4-1992 to the Home Secretary of all the Provinces. 19. Learned counsel further stated that the school is being developed in close proximity to plaintiff and other industrial establishment in a high risk industrial area thereby endangering the health, safety and lives of hundreds of children, teachers and support staff who will eventually be admitted into or will work in the school. He contended that the defendant has started construction despite being aware of the provisions of the Act, the 1951 Rules and the Directive and plaintiff is involved in the refining and storage of crude oil and the process of refining crude oil take place at extremely high temperatures and extremely high pressures. Hence, the oil refineries are established in an industrial area which is at some distance from residential and other non-industrial establishment (e.g. School and hospital) so as to minimize the risk of injury or death to members of the public, school children and patient in case, of an outbreak of fire or an explosion. He stated that one kilometer is a reasonable distance 20. As regards application for contempt is concerned, learned counsel for the plaintiff vehemently argued that despite the clear and specific orders of this Court dated 5-8-2008, the defendant has committed wilful and deliberate defiance thereof, which conduct amounts to gross violation of contempt of Court. The cavalier attitude towards and disregard and disrespect of this Court is evident. He argued that no junior officer of the defendant would dare to engage in such blatant defiance of the orders of this Court unless such conduct was sanctioned at the highest level therefore this Court vide order dated 21-8-2008 attached the property so as to ensure that no further construction takes place at the plot in violation of this Court's order, 21. Mr. Dur Muhammad Shah, learned counsel for the defendant has controverted the above contentions raised by the learned counsel for the plaintiff and has argued that suit of plaintiff is not maintainable as no cause of action has ever accrued to the plaintiff for filing the present suit against the defendant, which is instituted just to create harassment and build pressure upon the defendant to usurp the valuable land of answering defendant by concealing true and real facts from the Court. He contended that the answering defendant has no nexus or concern with the alleged property consisting upon survey No, 82 which allegedly is near or close to the plaintiff premises or might be bounded/butted as alleged by the plaintiff which prima facie strengthens the submissions of answering defendants as correct and true and sufficiently proved the mala fides, bad faith, ulterior motives of the plaintiffs as from the averments of the plaint the plaintiff intends to seek restraining order upon property comprising of Survey No,82, which may be hazardous or dangerous to the privacy/secrecy/security of the plaintiff. Therefore plaintiff's alleged claim is hit with the principle of "Approbate and Reprobate". He further contended that the pleas of plaintiff are contrary and contradictory with each other and further the plaintiff has tried to mislead the Court by creating confusion in respect of alleged property. He argued that defendant is a foreign investor and has obtain lease hold right of the subject property with piroper approvals from the Government of Sindh as well as from the concerned authorities, Cantonment Board within whose reach/ jurisdiction the subject property and the concerned Cantonment has also accorded its consent/permission/approval for the utilization of subject land for educational purposes which would ultimately be a good source for bright future/career of new generation which at present is the dire need of our country to improve and upgrade literacy rate in the society. He, however, contended that in the given circumstances it is clearly proved that plaintiff has got no prima facie in this case nor balance of convenience in its favour nor any alleged irreparable loss may accrue
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to it, rather it will be answering defendant who shall…
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