Navid Hussain v. City District Government of Karachi

The Plaintiffs were lessees of Plot No.151-A, Block-II, PECHS Karachi (the plot), a residential complex. The lessor was the Ministry of Housing and Works, who was impleaded as Defendant No. 4 in the suit. The lease deed had a restrictive covenant which prevented the land from being converted from residential to commercial uses even after sale. Defendant No. 5, a proprietary concern, purchased the plot in an open auction on an “as is where is basis” and planned to convert it into commercial premises by constructing multi-storey buildings.

Being aggrieved by the proposed commercialization of the plot, the Plaintiffs brought a suit for injunction against the Defendants  for the “protection of their right against nuisance, their right of peaceful and noiseless enjoyment, of property, their right to enjoy fresh air free from pollution, and of a clean and healthy environment.” The Plaintiffs contended that this was against the restrictive covenant in the lease deed, whereby the nature of the plot could not be changed. They argued that the construction of commercial premises on a residential plot would cause “depletion in the electric and water supply due to unplanned overloading of the system, overflowing sewerage, traffic jam and parking problems, noise and air pollution” among other things. Their quality of life as envisaged by article 9 of the Constitution would deteriorate. They sought an injunction before the Karachi High Court restraining the Defendants from proceeding with the commercialization of the plot.

Defendant No. 5, however contended that it had obtained a No-Objection Certificate from the Karachi Development Authority for conversion of the said plot. Therefore, it had acted well within the existing laws and regulations. Further, Defendant No. 5 claimed that the Plaintiffs were also using the residential plot for commercial purposes. Moreover, there were existing multi-storey buildings in the said plot which the Plaintiffs did not object to. Therefore, Defendant No. 5 argued that the Plaintiffs were estopped from seeking to prevent Defendant No. 5 from commercializing the plot.

The Court held that the Plaintiffs had a right to ensure their enjoyment of life and a peaceful and healthy environment. It held that the Plaintiffs were entitled to enforce the restrictive covenant in the lease deed in equity and in law. They could therefore maintain a suit for injunction seeking to enforce the right to enjoyment of life.

The Court also rejected Defendant No. 5’s contention that the Plaintiffs were estopped from their claim, holding that “two wrongs cannot make a right.” The Defendants could not use this argument to perpetuate an illegal action which was against public interest, and in violation of the existing lease deed. As the lease deed specifically restrained the Defendants from commercializing the said plot, any action taken in furtherance thereto would be a violation of the law. The Court granted an injunction restraining Defendant No.5 from raising any construction on the said plot.

“The Plaintiffs Nos.1 to 5 of course have a right to ensure that no construction in their vicinity be allowed in violation of law, rule and regulations, which may infringe on their right of enjoyment of life.” [2007 CLC 912, Para 11]

“The Plaintiffs, thus, have clear actionable right against the impugned construction and also to seek enforcement of the restrictive covenant of the lessees.” [2007 CLC 912, Para 11]