M. AZAM KHAN Versus JOANNOU & PARASKEVAIDES (OVERSEAS) LTD. , iHimayat Ali Pirzada
ORDER
By this order I propose to decide C.MA. No. 5497/89 which is an application for interim injunction under Order 39 Rules 1 and 2 read with section 151 C P C in Suit No.927/89 and another similar application in the counter‑case being Suit No. 1186/89.
2. The brief facts giving rise to these applications are that M. Azam Khan has filed Suit No.927/89 while M/s. Joannou and Paraskevaides (Overseas) Ltd. have filed Suit No.1186/89 wherein it is statcd that the former has been awarded contract for collection of royalty/quarrying of surface minerals in Karachi area w.e.f. 30‑5‑1989 upto 30‑6‑1990 by the Government of Sindh. He was to collect the royalty on aggregate stone, gravel, ordinary stone, bajri, limestone and ordinary sand lifted or excavated from Karachi Division with exception of 17 areas shown in the Terms and Conditions of Auction filed as Annexure `B' with the plaint. M/s. Joannou and Paraskevaides (Overseas) Limited the defendant No.l in Suit No. 927/89 and plaintiff in Suit No. 1186/89 is a Government contractor and has been awarded contract for construction of a second roadway paralleling the existing roadway to form a four‑lanes divided highway between KM 13 and KM 81 of Karachi Hyderabad Section of H‑5 Highway commonly known as Super‑Highway, by National Highway Board, Ministry of Communication, Government of Pakistan Islamabad. It is alleged by M. Azam Khan that Joannou and Paraskevaides (Overseas) are excavating and lifting surface minerals from the areas of Karachi Division, granted to the plaintiff, for the construction of road for which M. Azam Khan is entitled to collect royalty, but they have refused to pay the same to him. The case of Jaannou (Overseas) Limited is that they are not collecting surface minerals from the areas of Karachi Division which have been granted to MAzam Khan but they are purchasing the same from private land‑owners of Dadu District for which they have also produced certain agreements, as such they are not liable to pay royalty to the plaintiff. It is pleaded by them that since they are lifting and excavating the minerals for Government work, they are not liable to pay the royalty on it. Mr. Himayat Ali Pirzada,,who has appeared for Government of Sindh has contended that Government of Sindh and in turn their contractor plaintiff M. Azam Khan is entitled to recover royalty from the defendant Joannou and Paraskevaides (Overseas) Ltd. on the minerals lifted or collected by them and that they have not granted any exemption to them. Mr. Saleem who appeared for National Highway Board and Government of Pakistan contended that they were not liable to pay the royalty but could not show any such exemption in spite of taking time for the said purpose. The advocate for M. Azam Khan has contended that it is admitted by Joannou (Overseas) Ltd. that they are excavating and collecting surface minerals from the areas of Karachi Division which have been granted to him as is clear from para 4 of the plaint in Suit No.1186/89 which is to the effect, "certain material such as loose earth, hill, sand, stone boulders are acquired from the Government lands for execution of the Government work of public nature. Mr. Kohistani Advocate for M/s. Joannou and Paraskevaides (Overseas) Ltd. in reply referred me to para 10 of plaint of Suit No.927/89 and contended that it is admitted by plaintiff MAzam Khan that however the plaintiff is neither claiming nor has any right to claim any thing from the defendant No.l on the Government work being done by them, as such the ad interim injunction granted against the plaintiff in First Class Suit No.41/89 by learned Senior Civil Judge Kotri has no bearing upon this suit." He therefore submitted that MAzam Khan has himself admitted that he has no right to claim any royalty on the surface minerals excavated or collected for being used in the Government work, as M/s. Joannou and Paraskevaides (Overseas) Ltd. are admittedly doing the Government work of construction of road.
Mr. Tasawar Hussain submitted that by these words the plaintiff M. Azam Khan never meant to say that he had no right to collect royalty on the surface minerals excavated for the purpose of construction of road but what he meant to say was that he was not claiming any thing from M/s. Joannou and Paraskevaides (Overseas) Ltd. on the Government work but what he was claiming was royalty on excavating or lifting the surface minerals, which he submitted that he was entitled to recover from M/s. Joannou and Paraskevaides (Overseas) Ltd. In this connection he relied upon paras 16 and 17 of the Terms and Conditions Annexure B which read as under:‑
"16. If the Government or other Organization, sponsored/set‑up by the Government requires any material extracted or collected from the quarries, the auction‑holder shall supply the required material to Government or to that Organisation on priority basis at the price mutually agreed upon between the parties.
17. If the Government is satisfied that the auction‑holder unreasonably or without due or sufficient cause is refusing to supply the required material to the Government or to the Organisation with particular reference to its rate, the Government or the Organisation with the permission in writing from director may fix the rate of the required material, and the auction holder shall supply the material to the Government or the Organisation, at such rates.
Mr. Tasawar Hussain in his support relied upon the case of Ali Mohtaram Naqvi v. M/s. Cogefar‑Astaldi Sidmail reported in P L D 1986 Karachi 574. 'fi:e facts of this case are that the plaintiff had applied to the Provincial Government for lease of one year for utilizing and removing quarries gravel stone aggregate in an area of 800 acres of Dadu District on payment of usual royalty, which was granted on the Terms and Conditions embodied in the permit. Defendant No.l, a foreign firm was constructing Super Highway at the relevant time under a contract with the Government of West Pakistan. Before the plaintiff could commence excavation, the defendant No.1 without plaintiff's consent excavated huge quantity of ordinary stone etc. Mukhtiarkar Kotri Taluka demanded royalty from the plaintiff for these excavations. It was held by my learned brother Dr. Tanzil‑ur‑Rchman, J. inter alia, that the defendant No.l had the right to enter upon the area and carry out its operations on the Government land with the object of obtaining materials needed for the purpose of constructing the Highway, on payment of normal royalty to the Government and fox private land to pay extra compensation to private land‑owners, and pay for borrow‑pits outside the Highway. This ruling is fully applicable to the facts of the present case.
I am therefore of the clear view that M. Azam Khan, who is the contractor of Government of Sindh is entitled to collect royalty at the rate of Rs.20 per truck according to para. 26 of the Terms and Conditions from M/s. Joannou and Paraskevaides (Overseas) Ltd. on the surface minerals lifted or excavated from the areas of Karachi Division, even though the latter was using A the same in Government work.
I am therefore satisfied that plaintiff M. Azam Khan has a prima facie case. In case the amount of royalty is not safeguarded at this moment the defendant No.l M/s. Jannou and Paraskevaides (Overseas) Ltd., who is a foreign firm may leave the country and the plaintiff will suffer irreparable loss. The balance of convenience is also in his favour. I therefore grant C M A No. 5497/89 of Suit No. 927/89 and dismiss injunction application of Suit No. 1186/89 and restrain defendant No.l from excavating and lifting surface minerals in Karachi areas without paying due royalty to the plaintiff. I, however, impose the condition that the arrears of royalty payable by the defendant No.l to the plaintiff upto this date shall be deposited by the defendant No.l in this Court within 15 days while current royalty shall be paid on or before 10th of every succeeding month and will be disposed of in accordance with the final decision of this suit. The royalty will be calculated w.e.f. date on which possession was delivered to the plaintiff which according to the statement of his counsel is 30‑5‑1989 upto 30‑6‑1990.
AA./M‑1040/K Order accordingly.