2005 PLP 388 (CLC)

It appears that the defendant in the mean time, started operating the Petrol Pump themselves, that led the filing of another application by the plaintiff being C.M.A. No.7030 of 2003 under Order XXXIX, rules 1 and 2, C.P.C. ‑ Through last mentioned application, plaintiff has sought restraining order against the defendant not to run the Petrol Pump, as the defendant being statutory body under the mandate of law are not authorized to run the same. In order of priority C.M.A. No.6432 of 2003 under Order VII, rule 11, C.P.C. was taken up first. Mr. Bhatti, learned counsel for the defendant contended that, the suit is barred under section 273 of the Cantonments Act, 1924 as well as under sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. In terms of section 273 of the Cantonments Act it was stated that no mandatory notice as required under said provision was served, therefore, suit is not maintainable. It was next contended that the defendant Cantonment Board, in good faiths took the action and in accordance with provisions of Ordinance, 1965, therefore, suit is barred under sections 10 and 11 of the Ordinance, 1965. In contra, Mr. Iqbal Kazi, learned counsel for the plaintiff contended that, the defendant Cantonment Board could not claim any protection under section 273 of the Act, 1924, as the impugned action was not taken under the Cantonments Act, 1924: In support, Mr. Kazi, has placed reliance on Cantonment Board v: Hazari Lal AIR 1934 All. 436, Cantonment Board Meerut v. Kamta Prasad AIR 1947 Ali. 243, Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board, Karachi PLD 2003 Kar. 495, Mst. Arshan Bi v. Maula Bakhsh 2003 SCMR 318, Daulat Khan and others v. Fazal Ahmed and 2 others 1998 MLD 1771 and lastly Messrs Azeem & Sons v. Ministry of Defence and 3 others 2001 CLC 1339. In order to, appreciate rival contentions of both the learned counsel it will be beneficial to browse through section 273 of the Cantonments Act, which, reads as under:‑‑ "

273. Notice to be given of suits:

‑(1) No suit shall be instituted against Board, or against any member of a Board, or against any officer or 'servant of a Board, in respect of any act done or purporting to have been done in pursuance of this Act or of any rule of bye law made thereunder; until the expiration of two months after notice in writing has been left at the office of the Board, and, in the case of such member, officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and unless the plaintiff contains a statement that such notice has been so delivered or left. (2) If the (Board), members, officer or servant has, before the suit is instituted, tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, and shall also pay all costs incurred by the defendant after such tender. (3) No suit, as is described in subsection (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (4) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit of proceedings." Adverting to the first objection as to bar, of suit in terms of section 273 of the Cantonments Act. Service of two months notice is not a condition precedent for bringing suit of each and every nature under the Cantonments Act. Notice is required to be served only in all matters falling under the Cantonments Act, excepting suits or action for the (a) recovery of immovable property (b) for a declaration of title thereto and (c) suit where only relief claimed is an injunction. The notice within the contemplation of section 273 of the Act, as a condition precedent before bringing any cause to the Court is purposeful. Object of notice under section 273(1) of the Act of 1924 is to provide a course or mechanism to a person who is aggrieved of an act done or purported to be done under the Cantonments Act, for the speedy redressal of his grievance at the departmental level. In case the grievance is not attended within two months from the date of service of notice on the Board, member, or servant of the Board, as the case may be, then the act complained of could be brought to the Court. Such course is available where the act complained of is performed or proposed to be carried out, falls within the four corners of the Cantonment Act, or of any rules or bye‑laws made thereunder. Precondition to serve the notice before bringing the cause in Court is attracted under section 273 of the Cantonments Act only "in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye‑law made thereunder". As observed above no notice is required to be served where suits or action is for the (a) recovery of immovable property (b) for a declaration of title thereto and (c) suit where only relief claimed is an injunction. It is now settled position in law, where the action impugned' is shown to be prima facie illegal, mala fide and/or beyond the realm of the authority, in such cases plaintiff cannot be non‑suited for want of notice. See PLD 1984 Kar. 34, 1992 CLC 723 and 1998 MLD 1771. Merely because the functionary constituted under the Cantonments Act took impugned action, ipso facto, would not attract any immunity or statutory protection. Burden is upon the, authority or functionary seeking immunity or protection of statutory bar to show that the act done or purported to be done was and is in pursuance of the Cantonments Act or of any rule or bye‑laws made thereunder. Immunity in terms of section 273 of the Cantonments Act, to the functionaries thereunder, is also not available where the act impugned is done in exercise of authority invested under some other enactment. Admittedly the defendant, took the impugned action, in purported exercise of authority conferred in terms of section 5(1) of the Ordinance, 1965; therefore, defendant cannot be allowed to use statutory shield under section 273 of the Cantonments Act. Such view is also backed by case reported as Cantonment Board AIR 1934 All. 436 and Cantonment Board Meriut AIR 1947 All. 243 (supra). For the purposes of deciding the application under Order VII, rule 11, C.P.C., in the first instance averments and relief claimed in the plaint were examined to see whether the bar as urged by learned counsel for the plaintiff is attracted under the Cantonments Act or not. Prayers (A) seeks two‑fold relief firstly impugning the action of the defendant Cantonment Board taken under section 5 of the Ordinance, 1965, since the impugned action is not under the Cantonments Act, therefore, two months notice not a condition precedent in terms of section 273(1). Secondly relief sought is regarding his status and title to occupy the suit property. No notice is required under section 273(3) where suit is for a declaration of title thereto. Prayer (B), seeking restoration of possession, in terms of section 273(3) (ibid), also does not attract precondition of two months notice. Lastly the relief claimed in prayer clause (C) is for Permanent Injunction. In terms of section 273(4) notice is specifically dispensed with in suits for an injunction, reason assigned is that the giving of the notice or the postponement of the institution of the suit proceedings would defeat the object. In view of the, foregoing discussion, I am convinced that suit is not barred under section 273 of the Cantonments Act. Adverting to the second limb of the legal objection as to maintainability of suit under section 10 of the Ordinance, 1965. In order to appreciate the arguments of the learned counsel for the defendant, on this score, it would be beneficial to refer to section 10 of the Ordinance, 1965, which runs as follows:‑‑ "

10. No Civil Court shall pass an order in any suit or proceeding granting a temporary or interim injunction restraining the Central Government or any officer authorized by it from taking possession of any land or building under this Ordinance. On reading section 10, it is clear that jurisdiction of Civil Court is curtailed from passing temporary or interim injunctive order in any suit or proceeding restraining the Central Government or any officer authorized by it from taking possession of any land or building under the Ordinance. The bar to grant temporary or interim injunction would come into play only (i) when it, is shown that impugned action is being taken under the Ordinance of 1965 and secondly that injunctive relief is being sought before the possession of any land or building is taken. As a natural corollary, bar would not be attracted where it is demonstrated firstly, that the impugned action is not backed by any provision of Ordinance of 1965. And or secondly, the impugned action is challenged after the possession of any land or building has been taken over under the purported or colourful exercise of jurisdiction under the Ordinance, 1965. In the instant case, action impugned is notice dated 25‑10‑2003 and consequent taking over possession of a running Petrol Pump on 26‑10‑2003. Suit was filed on 4‑11‑2003, that is, after the possession was already taken over by the defendant in purported exercise of jurisdiction under section 5 of the Ordinance, 1965, therefore in my humble view, bar in terms of section 10 in the instant case would not be attracted. Now adverting to bar of suit in terms of section 11 of the Ordinance, 1965 as claimed by the learned counsel for the defendant, section 11 of the Ordinance, 1965 reads as follows:‑‑ 11(1) No suit or legal proceeding shall be against the Central Government in respect of anything, which is, in good faith, done or intended to be done under this Ordinance. (2) No suit, prosecution or other legal proceedings shall be against any person in respect of anything which is in good faith done or intended to be done under this Ordinance. On bare reading of section 11 of the Ordinance 1965 reproduced above it becomes clear that, the bar to launch proceeding or suit, within the contemplation of above referred provision, is attracted only where two conditions are fulfilled. Firstly where the action assailed is done in good faith and secondly, it falls within the four corners of the Ordinance, 1965. Mr. Butt, learned counsel for the defendant contends that the action assailed, was done in good faith and secondly that it was done strictly in accordance with section 5 of the Ordinance, 1965, therefore, restraint to bring suit, in terms of section 11 of the Ordinance is attracted. He contends that, as required under section 5 of the Ordinance, after requisite enquiry it was found that the plaintiff is in unauthorized possession, therefore, as mandated under section 5 thereof, possession of petrol pump was rightly taken over. Mr. Butt, contends that since the possession was taken after due notice of 24 hours, as mandated under the law, nothing more was required to be done. The act complained of was taken strictly in accordance with law, to which no exception could be taken. In support Mr. Butt has placed reliance on' section 5 of the Ordinance, 1965 copy of the Ordinance, was also placed on record, the provision as per his reliance reads as follows:‑‑ "5. (1) If the Central Government is satisfied after making such enquiry as it thinks fit that a person is an unauthorized occupant of any land or building, it may, by order in writing direct such person to vacate the land or building within the period specified in the order." Mr. Iqbal Kazi, learned counsel for the plaintiff controverted the contentions of Mr. Butt both, on legal as well as factual count. It was contended that the assailed action of the defendant is tainted with mala fide, has no backing of law. According to Mr. Kazi impugned action is not only without authority but is in violation of the provisions of law, inasmuch as, the impugned notice does not reflect that defendant being a functionary under the Cantonments Act has been conferred any authority under the Ordinance, 1965. Secondly, without prejudice, it was urged that, no basis for satisfaction appears to exist on the record for holding plaintiff being in unauthorized occupation. Thirdly that, notice and direction to vacate building was passed in posthaste without holding any inquiry and or without affording any opportunity of hearing as provided under the Ordinance, 1965. Mr. Kazi, curtly points out that the Ordinance, 1965, was amended in 1984, that now provide express right of hearing, which was altogether ignored and the defendant oblivious of the amendment took action under the un-amended law. Mr. Iqbal Kazi, further urged that the defendant being a statutory functionary is required to act strictly in accordance with law and in the manner provided for in the law. It was contended that statutory and public functionaries are required to act in fair and transparent manner and to exercise authority in the manner bestow under the law and not otherwise. He urged that even where the law does not provide any expressly provide hearing it was always deemed expressed to provide hearing before adverse action is taken. In instant case, it was urged, no hearing was provided for obvious mala fide and for reasons best known to the defendant. He, therefore, urged that bar in terms of section 11(2) is not available and the application under Order VII, rule 11, C.P.C. is liable to be dismissed. Reliance was placed on section 24‑A of the General Clauses Act, Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268 (2276), Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45 and Commissioner of Income‑Tax East Pakistan v. Fazlur Rahman PLD 1964 SC

410. From the record it appears that impugned order under section 5(1) of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 dated 25th October was issued on 25th October, 2003 directing the plaintiff to hand over the possession to the defendant within 24 hours therefrom. On the following day i.e. on 26th October, 2003 at about 5‑45 p.m. exercise of taking over the possession was completed. When learned counsel for the defendant was confronted with the amended provision, he pleaded ignorance and stated that he has already placed the law provided by the Board on Court record. I have perused the amendment made in section 5 and other provisions of the Ordinance, 1965 in the year 1984. After amendment, section 5 reads as follows:‑‑ 5. (1) If the (Federal Government) is satisfied after making such enquiry as it thinks fit that a person is an unauthorized occupant of any land or building, it may, (after giving such person an opportunity of being heard), by order in writing direct such person to vacate the land or building within the period specified in the order. (2) If any person refuses or fails to vacate any land or building as directed by an order under subsection (1), any officer authorized in this behalf by the (Federal Government) may, notwithstanding anything contained in any other law for the time being in force; enter upon such land or building and recover possession of the same by evicting such person and may also demolish and remove the structures, if any erected or built by that person. (Words in bold were inserted by Federal Government Lands and Buildings (Recovery of Possession) Ordinance, 1984, dated 27‑3‑1984 See PLD 1984 Central Statute 92). It is ironical to note that the learned counsel for the defendant was not aware of the amendments made in the law. It is indeed more dreadful to note that an important public functionary like Cantonment Board also seems to be unaware of the amendment in the law that took place almost two decades ago. When any public authority or functionary exercises any authority or jurisdiction under any law it is not only expected but is required of them to be fully aware of the existing law, under which authority or jurisdiction is being exercised. It is well‑settled principle that ignorance of law is no excuse for any person including public functionary where ignorance of law is displayed by public functionary, it is nothing short of criminal negligence and amount to breach of statutory duty and is amenable to judicial review. Order of dispossession in terms of section 5 could only be taken provided following conditions are met: (i) Enquiry into nature of occupation of a person, (ii) Providing opportunity of being heard to the occupant. (iii) Satisfaction of the Federal Government or the delegated authority that a person is an unauthorized occupant of any land or building of the Federal Government. (iv) Pass an order in writing directing person found to be in unauthorized occupation to vacate the land or building. (iv) Specify the period within which the building or land is to be vacated. Where any judicial or quasi‑judicial enquiry is required to be carried out by a public or statutory functionary and no procedure is provided, then it implies an investigation into the matter from different sources in order to find out the truth of the matter and or veracity of allegations. In case, a person is likely to be affected by the result of any enquiry, in all fairness, equity and good conscience, such person must be given an opportunity of being heard and offer explanation as to matter relating to his conduct. After holding an enquiry, it is not necessary that an order of eviction is to be passed mechanically or as a matter of course. Eviction order is to be passed by the authority concerned after being satisfied as a result of any enquiry that the person is in. unauthorized occupation. Satisfaction under section 5 (ibid), is a condition precedent to exercise authority under section 5 of the Ordinance, 1965 and that too, before an order of eviction is passed. The satisfaction in terms of section 5, is to be unbiased and fair in nature and not merely illusory or superficial and must reflect from the assessment, the situation and finding of the enquiry. As noted above Authority concerned, before passing order of eviction, in terms of section 5 of the Ordinance 1965, must hold an enquiry into the allegation as to unauthorized occupation of any person. It is only when the authority concerned, after holding an enquiry, is satisfied that person, against whom action for dispossession is proposed to be taken, is in unauthorized occupation, order for eviction could be passed. Under the Ordinance, 1965 "unauthorized occupant" is defined in section 2(e) as follows:‑‑ (e) "unauthorized occupant" means a person who is in occupation of any land or building without the express permission or authority of the Central Government, and includes‑ (i) a person inducted into any land or building by the lessee or licensee thereof; and (ii) every member of the lessees or licensee's family who remains in occupation of any land or building after the determination of the lease or licence in respect of the same. (Underlined for adding emphasis)... On reading of above definition, a person under the Ordinance, 1965 could be said to be in an unauthorized occupation of the Government land or building firstly, where he is occupying any land or building of the Federal Government without the express permission or authority. Secondly, where lessees or licensees or any person claiming through or under them is found `holding over' possession, after the determination of the lease or the licence, of such land or building, as the case may be. Examining the case of the plaintiff in the, light of the above, Mr. Butt learned counsel appearing for the defendant fairly conceded that except order, dated 25‑5‑2003 impugned in suit, no other notice or hearing was given to the plaintiff. Indeed no notice could be claimed to have been given, when the defendants were not even aware that the Federal Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 was amended in 1984, whereby right of hearing was specifically engrafted in the Ordinance. Nothing was brought on record to show any enquiry was ever held before passing an order of eviction therefore, question of satisfaction of the authority before passing any order, as required under section 5 of the Ordinance, 1965 does not arise. Admittedly a lease exists in favour of the plaintiff, that appears to be valid for a period up to 31st December, 2005 (Supplementary Agreement is available in Annexure "G" to the plaint, at page 73 of the file). Therefore, prima facie, on the face of such document it cannot be said that the plaintiff was in unauthorized occupation in terms defined under section 2(e)(ii) of the Ordinance, 1965. Learned counsel for the defendant, had the audacity to argue that 24 hours notice was sufficient notice. Arguments on the face of it are preposterous. It is indeed very painful to note that Advocates some time support unauthorized and wholly unjustified actions of their clients. In doing so they abdicate their primary duty they owe to the Court as an officer of the Court, secondly towards society and lastly towards their client. Where on the face of record, the action of the Authority cannot be sustained for valid reasons; foremost duty of a counsel is to advise them to mend their ways, guide them and put them on the right path, it is only then, the cause of justice is served; in which duties, regretfully, it is noted, the learned counsel for the defendant failed. It is inalienable right of every citizen of Pakistan and every other person for the time being in Pakistan, under Article 4 of the Constitution of Pakistan, to enjoy protection of law and to be treated in accordance with law. As noted above section 5 of the Ordinance, 1965 recognized right of hearing. Any action for taking over the possession could only be taken after giving such person an opportunity of being heard, and after holding enquiry. Admittedly neither any opportunity of being heard was given to the plaintiff nor, any enquiry was held before declaring the Plaintiff to be in unauthorized occupation. It is also settled position in law that where law requires some thing to be done in a particular manner it is to be done in that particular manner. It is settled position in law that there is no inherent power in public functionary or authority, they can only act within the parameters of law. The moment it is shown that any act of the public functionary does not fit in the scheme; of law under which authority is purported to be exercised, it is prima facie sufficient to assume that such action is not in good faith and certainly not in accordance with law. No authority howsoever high, can be allowed to impinge valuable right of hearing recognized specifically under section 5 of the Ordinance, 1965. The impugned action under circumstance cannot be said to be within four corners of Ordinance, 1965, therefore, bar to invoke the jurisdiction of this Court under circumstances cannot be pressed into service. In view of the foregoing the application under Order VII, rule 11 is hereby dismissed. Now adverting to C.M.A. 6287 of 2003 under Order. XXXIX, rules 1 and 2, C.P.C. Seeking restraining orders against the defendant not to part with the possession of the Malir Cantt. Petrol Pump and or giving its operation to any other person. Before hearing the application on merits learned counsel for the defendants stated that, the application has become infructuous as the petrol pump has been dismantled and is no more in existence. Serious note of such statement was taken, it appears that dismantling of the petrol pump was carried out by the defendant, in haste without waiting for the decision of the pending application. In all fairness the defendant, a statutory body, was required to maintain status quo till the hearing of application. Further proceedings in this regard will be taken after the inspection is carried out which has become necessary under the circumstances of the case. However, before action as may be necessary is taken, I heard the listed applications. Mr. Iqbal Kazi, learned counsel for the plaintiff, contended that, after restraining orders were passed by this Court against the defendant not to part with the possession of the petrol pump now the defendants themselves are running the petrol pump, which act is beyond the preview of authority and jurisdiction of the Cantonment Board. Cantonment Board is not enjoyed with any such power to operate and manage the petrol pump, therefore, such action itself, even otherwise, cannot be sustained. Mr. Butt, learned counsel for the defendant vehemently opposed the application, he contended that the action of the authorities to take over the possession was within the four corners of the Ordinance, 1965, he placed reliance on un-amended section 5 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. While deciding application under. Order VII, rule 11, C. P.C. 9 it was observed that where a statute confers any jurisdiction on a public functionary to do or execute law, or to act in a particular manner then it is incumbent on such authority to act strictly in accordance with the mandate of law. Inalienable right of a citizen to be treated in accordance with law as enjoined under Article 4 of the Constitution correspondingly imposes duty on public functionary responsible to implement law, in the manner it is required to be executed. The moment Public functionary acts in a manner not provided for in law or acts in defiance of mandatory requirement of law, they not only abdicate their duty, steps over their jurisdiction but, at the same time impinges upon inalienable rights of a citizen to be treated in accordance with law. Unfortunately, public functionaries do not care for due observance of law, they are carried away, more by their whims and fancies and extraneous considerations rather than to observe law in letter and spirit. It is matter of serious concern that, those enjoined to carry out and execute the law, take pride in defying the same and have audacity to, defend, rather to mend the wrong. Such attitude is neither in good taste nor can be approved of by the Court. Such mindset of public functionary and display of irresponsible attitude and misuse of State authority adversely affect the society at large and burden the Courts with litigation which could be conveniently, avoided, in case the public functionary act fairly, equitably and in accordance with law. Under facts and circumstances the plaintiff was able to make out good prima facie case, balance of convenience is also in favour of the plaintiff. The defendants have displayed utter disregard for the due process of law which conduct is to be admonished. Accordingly, I unhesitatingly arrived at a conclusion that plaintiff has made out a case for grant of the application, defendants are restrained from operating petrol pump in any manner. It was noted with deep concern that the defendants in most defiant manner to frustrate the cause out of sheer anger dismantled the petrol pump. "The action of dismantling the petrol pump prima facie appears to be in utter defiance of proviso to section 3 of the Ordinance, which proviso reads as follows: Provided that such officer shall not enter upon the demised land or building unless the Federal Government has given an opportunity of being heard to the lessee or licensee: Provided further that such office shall before demolishing‑and removing, any structure under the section issue a notice to the lessee or licensee calling upon him to remove such structure within the period specified in the notice. Adamancy and arrogance on the part of the defendant who cared least for the due process of law cannot be approved. Act of dismantling the petrol pump was taken apparently to cause loss to the plaintiff after the Court directed the defendant on 13‑3‑2003 to maintain the account of the business transacted. Dismantling the petrol pump in a sub judice matter and moreso in utter violation of express provision of section 3; without providing any opportunity what to speak of reasonable opportunity to the plaintiff to remove his valuable installation, cannot be said to be an action in good faith. Under peculiar circumstance of the case while deciding the listed application in order to preserve the subject -matter of suit, Nazir Was directed to seal the petrol pump, and report compliance. Nazir has carried out the order of the Court and submitted the report on 17‑3‑2004 confirming the statement of the defendant's counsel that the petrol pump has been dismantled. Above are the reasons for the short order, dated 15‑3‑2004 dismissing the application of the defendant under Order VII, rule 11, C.P.C. and allowing the application of the plaintiff under Order XXXIX rules 1 and 2, C.P.C. M.B.A./S‑86/K Suit dismissed.