2012 PLP 1113 (CLC)

NISAR HUSSAIN KHAN, J.

Petitioner has challenged the order/judgment of learned District Judge, Karak, passed in Misc. Civil Appeal No.3/14 of 2012, dated 19-1-2012, whereby his appeal has been dismissed and the order of learned Civil Judge-1, Karak, dated 4-1-2012, with regard to the grant of temporary injunction, has been maintained.

2. The brief facts of the case are that, plaintiffs-respondents filed a suit seeking declaration and perpetual injunction to the effect that XEN Public Health Engineering Department District, Karak, and Malik Qasim Khattak (sitting MPA of PF-41), Takht-e-Nasrati District, Karak, are not entitled to shift the water supply scheme of Tube-Well, approved for the welfare of the inhabitants of village Nusrat Abad and to install the same at some where else for the welfare of a sole person i.e. defendant No.3, which is illegal, unlawful, mala tide and is the result of collusion inter se the defendants. The plaintiffs-respondents also filed an application for grant of temporary injunction against the execution of the said Water Supply Scheme, till disposal of the suit. The defendants filed written statement as well as replication, wherein they refuted all the allegations of the plaintiffs. They specifically averred in the written statement that the proposed Water Supply Scheme is for village Rashid Abad, which is a new village whereas three Tube-Wells for water supply scheme of the plaintiffs village, are already in existence and in operation. They further averred that both the villages are adjacent to each other and the Water Supply Scheme in question has been approved by the concerned quarter, on the recommendations of the MPA concerned, which fact is evident from advertisement in the Newspaper.

3. After hearing both the learned counsel for the parties on the application, the learned trial Court accepted the application and consequently, temporary injunction was granted in favour of the plaintiffs/respondents, for statutory period of six months or till disposal of the suit, whichever may be earlier. Being aggrieved of the order of the learned trial Court, petitioner filed an appeal in the Court of learned District Judge, which was dismissed vide the impugned order, hence, this revision petition.

4. Arguments of the learned counsel for the parties heard at length and record perused with their valuable assistance.

5. Admittedly, it is a set principle of law that there are three essential ingredients i.e. prima facie case, balance of convenience and irreparable loss, for grant of temporary injunction, which must co-exist in favour of the plaintiff. The perusal of the record transpires that for water supply scheme of village Rashid Abad, installation of Tube-well was proposed by the concerned MPA. This scheme was to be implemented through Public Health Engineering Department of District, Karak, which is the executing agency. It is the Engineering Department, which select the site for construction of the scheme, after preparation of feasibility report. It is averred in the written statement that there are three tube-wells, already in existence, in village Nusrat Abad, belonging to the plaintiffs-respondents. However, the learned counsel for the respondents, disputed this contention and stated that there are only two Tube-wells, in village Nusrat Abad. Be that as it may, the two Tube-wells already in existence would be sufficient enough for the population of village Nusrat Abad, that's why, the third one, is proposed to be installed in village Rashid Abad. According to plans, provided in the Court, there is sufficient scattered population around the propose site of village Rasid Abad, which would also enjoy the fruits of the said scheme. It is also a matter of common knowledge that the second Tube-well is installed at a considerable distance from the one, already in existence, so that it may not hamper the efficacy of earlier one. That's why, the third. Tube-well might have been proposed to be installed, at some distance from the already existing two Tube-wells, in the hamlet of Rashid Abad. The proposed scheme is not the exclusive personal property of the petitioner, but all the inhabitants of village Nusrat Abad and other surrounding hamlets, would take benefit therefrom, if need be. The concerned MPA, is the elected representative of the people of the area, who knows better than any one else, as to where the scheme should be installed, because tomorrow he will again have to go to the same electors. While, the technical approval of the scheme is to be given by the concerned department, which has also been provided. It is a matter of common practice and knowledge that the people in our society do have local rivalries and prejudices, due to which they complain against each others and try to create hurdles just for petty ulterior motives.

6. The plaintiffs-respondents have alleged in their plaint that it was a scheme approved for their village Nusrat Abad but nothing has been brought on record in black and white to substantiate that originally, the proposed scheme was sanctioned for main village Nusrat Abad and was later on, shifted to hamlet Rashid Abad. On the other hand, they are already enjoying the facilities of water supply scheme springing out of the two Tube-wells and there is nothing on the record which may suggest that those Tube-wells are deficient, for their requirements. Thus, the plaintiff-respondents have got no prima facie case in their favour. The proposed scheme is, although, being installed in the property of the petitioner, but would never be his personal belonging. Rather, it would be for the public at large, including village Nusrat Abad and surrounding population of village Shibli Banda, having a considerable population, as per site plan, provided by the petitioner in the Court. Thus, it would be the petitioner and other people inhibiting in the surroundings, who would face inconvenience by issuance of temporary injunction and stoppage of installation work. Lastly, in case of grant of temporary injunction, there is every likelihood of lapsing of the funds or transfer of the scheme to any where else, which would not provide benefit to the respondents, rather would cause an irreparable loss to the petitioner/defendant.

7. Admittedly the developmental schemes are always meant for the social welfare of the public at large and no body can exclusively claim his right on such Project or the public Exchequers. By virtue of the Constitutional command, every individual has got equal right of access to and enjoyment of the public facility, provided through the State machinery and no body can be discriminately treated on the ground of cast, creed, sex or strength. This is the golden idea which was basically enshrined in Islamic Jurisprudence encompassed in the last Hajj sermon "Khutba Hujj al-widha", which was later on followed by successive civilizations, down the ages and consequently embodied in the Constitution of Islamic Republic of Pakistan, 1973, which guaranteed the fundamental rights of every individual of the Islamic Republic of Pakistan. It is also enshrined in the Constitution to discourage parochial prejudices and promote social justice and eradications of social evils, as principle of State Policy. While applying this principle, this Court cannot agree to the proposition advanced on behalf of the plaintiffs-respondent that the proposed scheme should not be installed in village Rashid Abad for benefit of a single house and surrounding population.

8. There is yet another legal impediment placed by section 56(d) of the Specific Relief Act, in the way of rant of temporary injunction, which clearly prohibits grant of injunction and interference with the public duties of the department of central or Provincial Government While dealing with the matter of grant of temporary injunction against public department it would be considered by the Court that whether it is right to issue an injunction against the public department, which would obviously disturb its working. And it would certainly refrain to issue an injunction, unless some compelling reasons demand the issuance of injunctive order.

9. For what has been discussed above, this petition is allowed, the impugned judgments/orders of both the courts below are set aside and the application of plaintiffs-respondents for grant of temporary injunction is consequently dismissed. M.W.A./109/P Revision allowed.