MUHAMMAD KHURSHID ABBAS GARDEZI Versus PROVINCE OF PUNJAB

This judgment shall dispose of Civil Revisions Nos. 492, 504, 505, 506, 518, 519, 539, 540, 541 and 592 all of 1986. It shall, however, remain on the file of Civil Revision No. 504 of 1986.

2. Land measuring 196 acres 5 kanals and 6 marlas was acquired by Notification No. 155‑S/LAC, dated 4‑5‑1980, issued under subsection 4(1) and Rule 6 of the Punjab Acquisition of Land and Housing Rules, 1973 published in the Punjab Gazette on 20‑5‑1980 by the Land Acquisition Collector, Multan for the purposes of construction of new Shah Shams Colony, vide scheme known as Shah Shams Housing Colony Scheme at Vehari Road, Multan. This acquired land is situated both in Mauza Taraf Ravi and Mauza Kottla Muhammad Baka. The land owned by the petitioners in all the revision petitions falls in the said acquired area. The petitioners feeling aggrieved challenged the said acquisition by filing Writ Petition No. 6323 of 1980 before this Court which was, however, dismissed on 9‑3‑1981. I.C.A. No. 3/81 was filed against the said judgment which was also dismissed on 15‑3‑1981. The petitioners filed C . P . S . L . A . No. 377 of 1981 before the Supreme Court of Pakistan, which was also dismissed by judgment dated .18‑5‑1982 which is reported as P L D 1983 S C 151. In order to complete the proceedings of acquisition final notices were issued to the owners of the land whose land stood acquired under section 6(2)(3) of the said Act, 1973, for acquisition of the land on 8‑2‑1984. The petitioners filed suit for permanent injunction seeking a decree for restraining the respondents from acquiring the suit land and utilizing it for the purposes of Shah Shams Housing Scheme. The petitioners own land measuring 18 acres 5 marlas in Mauza Taraf Ravi Tehsil and District Multan. The petitioners pleaded that the action of the respondents for acquiring the area of the petitioners was in complete disregard to the decision of the Supreme Court passed in C.P.S.L.A. No. 377 of 1981 and the assurance given to the Hon'ble Supreme Court by the learned counsel for M.D.A. during the hearing of the said petition i.e. that any area to be used as industrial area would be excluded and exempted from acquisition for the said housing scheme. The petitioners' case was that their entire area fell within that area which has been reserved and ear‑marked in the master plan for the purposes of establishing industrial estate. In addition to this the case of the petitioners in Revision Petition No. 504 of 1986 and Revision Petition No. 505 of 1986 was also that the same could not be acquired as it was covered by gardens /orchards since Rabi 1978 and as such was excluded from the purview of the aforesaid Shah Shams Housing Scheme as is manifest from the order of Director General M . D . A . dated 17‑7‑1984. The petitioners in Revision Petition No. 492 of 1986 challenged the very legality of the scheme, the non‑observance of legal formalities in framing the said scheme as also the acquisition proceedings having not been taken in accordance with law, such as provisions of Punjab Acquisition (Housing) Act, 1973, and rules framed there-under were not allegedly strictly followed and that notification of acquisition of land was not allegedly given due publicity as required by law. The petitioners in this revision petition also challenged the correctness of the award and the quantum of compensation awarded to the petitioner. Alongwith the suit an application was made under Order XXXIX, Rules 1 and 2 and section 151, C.P.C. praying that pending final disposal of the suit an interim injunction may be issued restraining the defendants from acquiring the suit land of the plaintiffs for utilizing it for the purpose of Shah Shams Housing Scheme. The suit and the application for temporary injunction were contested by respondent No. 3 i.e. M.D.A. by filing written statement and reply respectively. Before deciding the application for temporary injunction filed by the petitioners the learned trial Court by order dated 31‑7‑1984 appointed a Local Commissioner to make a report after inspection of the spot as to whether the area owned by the petitioners was part of area reserved for establishing industrial estate as claimed by them. The Local Commissioner after inspection of the spot and carrying out measurement made a report on 12‑2‑1985. In this report the Local Commissioner pointed out that if the measurement of the land were to be done from the B.C.G. Chowk as alleged by the M . D . A . , then the area owned by the petitioners does not fall within the area reserved for industrial estate and if the same was done from new central jail area which according to the petitioners was the fixed point in the Master Plan then it falls within the area of industrial estate. The report of the Local Commissioner in the case of the other petitioners than petitioners in Revision Petitions Nos. 505 and 506 of 1986 is that if the measurement was carried out from the side of B.C.G. Chowk then the area owned by the said petitioners fell outside the industrial area. In the case of the petitioners in Revision Petition No. 505 of 1986 the report said that even if the measurement is done from B.C.G. Chowk then Khasra Nos. 2904‑min, 2905‑min, 2906‑min, 2908, 2910, 2912 and 2881‑min out of the land of the said petitioners fell within the industrial area. Likewise the report records that out of land of petitioners in Revision Petition No. 506 of 1986 Khasra Nos. 2656 to 2660, 2677‑min, 2878‑min, 2679, 2680/1‑min, 2674 are outside industrial area even if measurement is done from B.C.G. Chowk. The learned trial Court by order dated 23‑11‑1985 rejected the application of the petitioners for temporary injunction. Feeling aggrieved the petitioners filed appeal before the learned lower appellate Court against the said order which has also been dismissed by order dated 30‑6‑1986. Both these orders have been challenged by the petitioners in this revision petition.

3. Learned counsel for the petitioners contended that in order to establish that the petitioners have a prima facie case in their favour for the purpose of entitling the petitioners to the grant of temporary injunction he placed on the record of the suit before the trial Court a certificate issued by the Taxation Officer, Municipal Corporation, Multan, certifying that according to master plan the land owned by the petitioners was part of Light Factory area which was situated within the municipal limits and another certificate issued by the Chief Corporation Officer to the same effect. Apart from these two documents order dated 31‑7‑1984 passed by the District Collector allowing the applications of the petitioners for correction of Khasra Girdawari so as to record therein that the area owned' by the petitioners was covered by garden/orchards since Rabi 1978 and order dated 26‑3‑1985 passed by the Additional Commissioner (Revenue) Multan Division on appeals filed by M . D . A . against the said order which were dismissed were also placed on record. Learned counsel for the petitioners further contended that apart from these documents order dated 17‑7‑1984 of the Director was also placed on the record to show that the area under gardens /orchards since Rabi 1978 was exempted from acquisition for utilizing the same for housing scheme. According to the learned counsel this overwhelming documentary material alongwith the report of the Local Commissioner was sufficient to establish that the petitioners had a good prima facie case and that balance of convenience was also in their favour and that the petitioners were to suffer irreparable loss if the temporary injunction as prayed for was not passed. Learned counsel for the petitioners urged that in order to obtain a temporary injunction the plaintiff is required only to make out an arguable case and he is not required to establish that he has a case which must succeed. Learned counsel for the petitioners endeavour to argue that the admission made by the learned counsel for the M. D . A . before the Supreme Court at the time of disposal of C.P.S.L.A. No. 377 of 1981 that land reserved for industrial estate in Master Plan was not liable to be acquired for housing scheme further strengthened the case of the petitioners in this regard which has not been given due consideration and has been wrongly understood by the Courts below. He has also maintained that scope of report of the Local Commissioner and extent of its evidentiary value at this stage have also not been properly understood. The two certificates issued by the Taxation Officer and Chief Corporation Officer were also according to him excluded from consideration on erroneous considerations and likewise orders of Additional Commissioner dated 26‑3‑1985 and Director General, dated 17‑7‑1984 have also been wrongly excluded from consideration on no cogent reasons. He further maintained that the Courts below while disposing of the application of the petitioners for issuance of temporary injunction have not kept in view the three ingredients on the basis of which the decision regarding issuance of temporary injunction has to be taken which are well‑settled now by chain of reported judgments of superior Courts. Learned counsel for the petitioners laid a great deal of stress on the plea that the orders of both the Courts below suffer from misreading and misconstruction of the record, therefore, they could be interfered with, in exercise of revisional jurisdiction by this Court because they suffer from irregularity and illegality committed by the Courts below in exercise of their jurisdiction.

4. On the other hand learned counsel for respondent No.3 contended that under section 3 of the Punjab Acquisition of Land and Housing Act, 1973, all lands situated anywhere notwithstanding anything contained in any other law are liable to be acquired and there is no limitation on the power of the authorities in this regard. Learned counsel for respondent No.3 further maintained that the two certificates issued by the Taxation Officer, Municipal Corporation and Chief Officer are of no legal value. According to learned counsel, the report of the Local Commissioner even if considered as a whole it does not support the petitioners' case. Learned counsel for respondent No.3 vehemently argued that according to the case of the petitioners there was a violation of undertaking/assurance given before the Supreme Court in C.P.S.L.A. No. 377 of 1981 and the only remedy of the petitioners was to approach the same Court and the suit itself was incompetent. He also argued that exemption of gardens area originally given under the order of Director General dated 17‑7‑1984 was subsequently withdrawn and respondent No.3 has the power to amend the said order or cancel it, therefore, no right could be claimed on the basis of the original order dated 17‑7‑1984 passed by the Director‑General. He also emphasised that concurrent findings given by both the Courts below regarding non‑existence of prima facie case, balance of convenience and irreparable loss against the petitioners, could not be interfered with by this Court under section 115, C.P.C. and revision petitions were not competent.

5. The law is well‑settled by now that the three essential conditions for issuance of temporary injunction during pendency of suit are that the plaintiff has only to make out that he has a good prima facie meaning thereby that a serious question is to be tried in the suit E and that in the event of success if the injunction is not issued he will suffer an irreparable injury and that balance of convenience lies in his favour. It cannot be disputed that at this stage no finding of determinative nature is required to be made on the controverted questions of law and fact raised in the suit. What can possibly be done at this initial stage is to keep in the background the facts alleged and disputed in the case and to refer to the broad principles of law likely to be applied in resolving them with a view to find out whether there exists a prima facie case, whether the balance of convenience was in favour of plaintiff and whether on the refusal of interim order an irreparable injury would result to him. This view finds support from judgment of Supreme Court reported as Miani Muhammad Latif v. Province of West Pakistan P L D 1970 S C 180. The case of the petitioners in all the revision petitions except Revision Petition No. 592 of 1986 as made out in the plaint, is that the land owned by them could not be utilized for the purposes of housing scheme since it is reserved and earmarked for an industrial estate in the Master Plan and that the same could not be acquired and utilized for the said housing scheme under the law, therefore, the acquisition of land was alleged to be violative of provisions of law. It was their case that Master Plan actioned by the Government under the provisions of Local Government Ordinance, 1979, could not be over‑ridden. The petitioners in order to establish that they had a prima facie case relied upon statement of learned counsel for the M.D.A. made before the Supreme Court in the said decided case as an admission on the part of the M.D.A. that any land which was reserved for establishing industrial estate in the Master Plan could not be acquired and utilized for housing scheme. Beside, the report of Local Commissioner was also before the Court from which it could be spelt out that if measurement of the land was carried out from the side of Central Jail area, the land of the petitioners would fall within the industrial estate. This much material to my view was sufficient to hold that at" least the said petitioners had raised a substantial question of fact and law which required further investigation and adjudication by the Court. The matter required further enquiry is explicit from the statement of the learned counsel for the M. D. A . before the Supreme Court in which it was said that any area to be used as industrial area would be excluded and exempted from acquisition for housing scheme, for, when this statement was made the preliminary notification for acquisition of the land had already been issued and if it was the case of the M . D . A . that the land of the petitioners which had been acquired does not fall within the industrial estate, the statement would have been that no land of the petitioners fell within the industrial estate. The view that the case was of further enquiry gains strength from the written statement of respondent No.3 itself filed in the suit from which C.R. No. 592 of 1986 has arisen in which it has been pleaded that 12 kanals of land owned by the said petitioners having been found to fall within industrial estate was excluded from the acquisition. If respondent No.3 of its own on further investigation of the matter could come to the conclusion that a particular piece of land fell within industrial estate, the other petitioners could not be deprived of their right to prove before the Court by leading evidence that their lands were also within the industrial estate and as such they were entitled to the adjudication of their said plea in the suits that the impugned action as to the acquisition of their land for its utilization for the said housing scheme was illegal. The petitioners had raised such question for which they were entitled to adduce evidence before the Court during the trial. No doubt the petitioners had raised a substantial question of law with regard to acquisition of land which shall have to be determined by the Court one of them being that in view of provisions of sections 74, 75 and 76 of the Local Government Ordinance, 1979, which relate to the, Master Plan prima facie prohibit the development of any area in violation of the provisions of the Master Plan whether the acquisition of land for utilizing it for a housing scheme could be made under another Provincial Act of 1973. The Courts below while considering the material on the record from the point of view of determining as to whether the petitioners had disclosed prima facie case in the plaint, as a matter of fact have gone to the extent of adjudicating finally the questions of controversy between the parties which amounts to disposal of the suit itself which is not permitted by law. They took into consideration only that part of report of Local Commissioner, which pertains to measurement carried out from the side of B . C . G Chowk according to the view point of M.D.A. and ignored the other part which was in favour of the petitioners. In the result, considering the position of law, as explained and defined above, it is not possible to say that the petitioners have no case on the arguments mentioned' in the orders of the learned Courts below and now raised by the learned counsel for the parties. On the contrary the petitioners have, a prima facie case, therefore, the main ground for refusing the temporary injunction to the petitioners taken up by the learned Courts below being, that they had no prima facie case which obviously as' explained above is not correct; they are entitled to the grant of temporary injunction.

6. Apart from that the petitioners in this revision petition have also placed on record two certificates issued by the Taxation Officer and Chief Officer, Municipal Corporation from which it is prima facie manifest that the area owned by the said petitioners was within the industrial estate which certificates have been ignored on the ground that they were not binding on respondent No. 3 having not been issued by it. This view suffers from patent illegality inasmuch as in order to find out existence of prima facie case they could be relied upon since they were issued by Municipal Corporation which is charged with the statutory duty to see that Master Plan sanctioned by the Government is not in any way violated and thus certificates could not have been kept out of consideration at this stage on the reasoning given by the Courts below. It is not the requirement of law that whatever evidence the parties led against each other it must be of binding nature viz‑a‑viz the parties against whom it was to be used. The case of the petitioners in Revision Petition Nos. 504 and 505 of 1986 stands still on stronger footing inasmuch as in addition to the said pleas, they have also raised the plea that the area owned by them was under orchards/ gardens since Rabi 1978, therefore, was exempted from acquisition and utilization for housing scheme as per orders of Director‑General M.D.A. dated 17‑7‑1984. In order to establish prima facie case, with regard to the said plea, the petitioners of said revision petitions placed on record the order of District Collector dated 5‑9‑1984 made for the correction of entries in the Khasra Girdawaries that their area was under garden from Rabi 1978 beside the admission of the M.D.A. in appeal filed before the Commissioner against the said order in which during arguments it was specifically pleaded that according to scheme the area under garden from Rabi 1978 was excluded from acquisition of land for housing scheme. I have also gone through the order dated 17‑7‑1984 of the Director‑ General M. D . A . in which he has explicitly observed that according to the policy the area under garden/orchards was not to be acquired. Learned counsel for the M.D.A. has placed on record an un‑dated order allegedly passed by the Director‑General withdrawing the said previous order in order to argue that the area under garden/ orchards was ‑no longer exempted. Be that as it may, it requires determination by the Court in the suit as to whether the Director‑General, M. D. A . could amend or withdraw the previous order which was prima facie not his own order but he appears to have carried out the policy decision in this regard. The petitioners have a right to lead evidence that the basic policy in this regard having not been amended or withdrawn, therefore, the subsequent order of Director‑General was without' authority. This is apart from the argument of the petitioners that the said previous order could not have been withdrawn having created valuable rights in favour of the petitioners. The manner of appraisal of the material on the record made by the Courts below amounts to extend the scope of the enquiry at this stage from its proper limits. The temporary injunction has been refused to the petitioners on the finding that they should have approached the Supreme Court for contempt proceedings against the M. D. A . if it had violated the assurance given before the Supreme Court, cannot be accorded approval inasmuch as that statement could still be used by the petitioners as an admission of the fact that their plea was correct and they could prove their plea by independent evidence in addition to that and could establish before the Court that the acquisition proceedings to utilize the land for housing scheme was violative of the law regarding the Master Plah which allegedly prohibit the utilization of the land for any other purpose as envisaged by Master Plan.

7. It may be pointed out that in the impugned orders passed by the Courts below it was observed that the petitioners would not suffer an irreparable loss. I do not agree with the assessment of the Courts below on the question of balance of convenience and that of irreparable loss. The petitioners are owners of the land and if the land is allowed to be utilized for housing scheme which would allow respondent No. 3 to carve out the plots and use some land for trees and roads and if the said plots are allotted to various persons they might raise construction thereon. The petitioners undoubtedly would suffer irreparable loss and it will not be possible to measure the damage suffered by them, particularly at the time that their suits are decided in their favour they are not likely to say at or near the land involved and the question of compensation will become very complicated so as to permit any measurement. Since the petitioners have prima facie case, therefore, their seeking for the protection of their rights is not unjustified on the basis of any principle whatsoever

In my view all the conditions including that of balance of convenience and prima facie case having been fulfilled by the petitioners, therefore, they are entitled to the temporary relief claimed:

8. Coming to the Revision Petition No. 492 of 1986 these petitioners have not raised the plea that their area was under industrial estate. They have challenged the very Scheme, the quantum of compensation awarded to them and the award. It has been rightly held by the Courts below that with regard to these pleas the said petitioners had no prima facie case inasmuch as there was initial presumption that the scheme was sanctioned in accordance with law. About quantum of compensation and objections against the award, it was rightly held that the remedy of the petitioners was to take proceedings under the law by filing objection. But it has been ignored that the petitioner had raised other substantial questions of law, with regard to the proceedings regarding acquisition of land, their legality and effect which will require further adjudication by the trial Court. The petitioners claim to be in possession of the land to establish which fact they have placed on record F.I.R. No. 381 dated 20‑?‑1986 which was registered at the instance of respondent No. 3 complaining that the petitioners were not surrendering the possession. For the foregoing reasons, therefore, the petitioners could be held to have prima facie case and balance of convenience is also in their favour and they would also suffer irreparable loss if the interim order as prayed for by them was not issued.

9. Before parting with this aspect of the case, it may be pointed out that by prima facie case, it does not mean that the plaintiff has to establish that he has a case which must succeed. On the contrary what he has to show was that the pleas raised by him in the plaint require further investigation and that he has arguable case. The manner in which the Courts below have dealt with the matter of issuance of temporary injunction is against the law and judicial principles laid down from time to‑ time by the superior Courts which have not been observed. Learned counsel for respondent No.3 lastly argued that it was open to the Courts below to evaluate the evidentiary value of the Local Commissioner's report and accept that part of his report which according to the Courts below would have been the correct view. This course of action to my view could be taken at the time of final adjudication of the case but could not be adopted at this initial stage, to find out whether petitioners had prima facie.

10. Learned counsel for respondent No.3 in support of his objection as to the maintainability of the revision petition contended that the Courts below have neither failed to exercise jurisdiction vested in them nor they have exercised any jurisdiction not so vested in them nor they have committed the breach of any provision of law and that no material irregularity has been proved which could effect the impugned orders. I n my view section 115, C . P . C . empowers the High Court to satisfy itself upon three matters (a) that the order of the Subordinate Court is within its jurisdiction (b) that the case is one in which the Court ought to exercise jurisdiction and (c) that in exercising jurisdiction the Court has not acted illegally that is in breach of some provision of law, or with material irregularity that is, by committing some error of procedure in the course of the trial which is material, in that it may have affected the ultimate decision. It may be observed that there is no distinction between a provision of law relating to the jurisdiction of the Subordinate Court and the provision of law relating to the issues involved, in the case before the trial Court, and the mistaken view of either of the two shall attract section 115, C . P . C . This case is no doubt covered by situation (b) quoted above i.e. "the case is one in which the Subordinate Court ought to have exercised jurisdiction." A wrong decision on a 1 question of law involved in the merits of the case may, in a given case lead to the exercise of jurisdiction or failure to exercise a jurisdiction and as such if erroneous decision results in the Subordinate Court exercising the jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b) and subsection (c) of section 115, C . P. C . can be ignored. I have already held above that the learned Courts below have due to mistaken view of law reached the conclusion that the petitioners had no prima facie case which has led to both the Courts below failing to exercise the jurisdiction vested in them under the relevant provisions of law, therefore, the High Court has full power to interfere in such a case. This view finds support from judgment reported as Joy Chand Lal Babu v. Kamalakha Chaudhry PLD 1949 P C 114, in which subordinate Judge had held that a certain loan was a commercial loan and failed to exercise the jurisdiction under section 30 and 36(5)(a)(ii) of the Bengal Money Lenders Act, 1940, and the High Court took the view that the loan was not a commercial loan and on this view of the matter interfered in its revisional jurisdiction and it was held by the Judicial Committee that the interference by the High Court was justified under section 115(b) of the C . P . C . With reference to section 115, C . P . C . it may be stated that difference between a total lack of jurisdiction and an irregularity is sometimes one of degree and is a matter of difficulty. In a given case the facts and circumstances thereof may show that an irregularity (or for that matter illegality) mentioned in section 115(c), C.P.C. may subject to the difference of degree, be a case of total lack of 1, jurisdiction, and when it could be total lack of jurisdiction, it could as well be a failure to exercise a jurisdiction. I have already held above that the failure to exercise jurisdiction by the Courts below was due to mistaken view of law. It is well‑settled law that if there be a jurisdiction in a Court to act, the jurisdiction could be exercised if the failure to exercise will lead to injustice. On the findings that I have given above about the merits of the case the failure to issue temporary injunction by the Courts below will necessarily lead to injustice and there is no principle of public policy which forbids its exercise in the circumstances of this case. There is no merits in this contention which is hereby repelled.

11. Now I pass on to another argument raised by the learned counsel for respondent No.3 that it was in absolute discretion of the Courts below to issue temporary injunction during the pendency of suit and if they have exercised that discretion in not issuing the temporary injunction; the impugned orders under section 115, C.P.C. could not be challenged. This point of view to my mind has an entirely wrong angle. It may be observed that law does not contemplate that exercise of powers possessed by the Court can be refused arbitrarily. This discretion is regulated by law and the judicial principles laid down from time to time by the superior Courts which I have found to have not only been ignored but violated. The fulfilment of three essential conditions as discussed above by the petitioners justifying their claim for issuance of temporary injunction as laid down by law, made it incumbent on the Courts that the law be thus honoured application of which could be invoked by affected persons by invoking revisional jurisdiction of this Court. If, therefore, as in the instant case a person is able to bring his case, to claim interim relief within the four corners of relevant provisions of law governing the subject, the jurisdiction of the Court to grant the same will be construed as coupled with a duty to exercise that jurisdiction in that behalf, therefore, this objection has also no force.

12. For‑the foregoing reasons these revision petitions are hereby accepted, the impugned orders passed by the trial Court as well as the lower appellate Court in all these matters are hereby set aside and the applications filed by the petitioners for issuance of temporary injunction are hereby accepted. Respondent No.3 is restrained from utilizing the land of the petitioners for housing scheme and complete status quo shall be maintained till the disposal of the suits of the petitioners. The statement of facts and law and the observations made in connection therewith on merits of the case in this judgment are only tentative and in the context of the points raised during the hearing and they shall not influence the learned Courts below in deciding the suits on merits.

13. I have noticed that the suits are pending since 1984 and the matter is still at the stage of the decision of question of issuance of temporary injunction. Learned counsel for the petitioners stated at the bar that they were not interested to prolong the matter and undertook to conclude their evidence within three months. The trial Court is hereby directed to expedite the proceedings in the suits and dispose them of within six months from the date of receipt of this judgment and report compliance of this direction to this Court. There will be, however, no order as to costs.

M.Y.H./M‑485/L Case remanded.