P L D 1972 Azad J & K 80 (PLP)

Now coming to the question of the balance of convenience, it has been interpreted to mean the comparative balance of inconvenience. The timber is alleged to be in the neighbourhood of seven lakh oft. That, from every angle, is a huge quantity. It is lying at numerous places and at great distances. To allow it to lie there would be inviting, at least the risk, if not the certainty, of its being lost through mischief, floods, theft and so on. It is, therefore, in the interests of neither party to stand in the way of its removal from its existing locations to s single safe place. The D. F. O., Muzaffarabad who has been appearing for the department in ibis case has today is response to 90 order passed by me yesterday informed the Court in writing that Bridge. Mohammad Aslam Khan has (perhaps so far) export ed 8,28,675 cft. of timber which means about 7 lac cft. less than the quantity awarded under the award. Part of this timbar is lying across the Cease‑fire‑Line, probably in and near the compartments to which the lease related and part of it is on our side of the Cease‑fire Line. It has been given in writing by the Government today that it is not possible for them to state as to how much timber was lying across the Cease‑fire‑Line which means it is not possible to determine what quantity of timber is lying on our side of the Cease‑fire‑Line. I asked the D. F. O. today whether he was in a position to give any approximate figures with regard to the latter but he said that it was not possible to do so as the D. F. O. concerned was at a distance of about 50 miles and that it would take at least a week to get the requisite information. It is unnecessary to adjourn case for that reason because what is material and is accepted by the parties is that part of the timber is lying across the Cease‑fire‑Line while the other part is lying on this side of the said line. Let me now first take up the application for injunction with regard to the timber lying across the Cease‑fire‑Line. It was stated in the Court by Brig. Aslam that the process of extraction by which we all understand to mean felling of trees and their conversion into timber, bad been already completed. This statement was not challenged or repudiated on behalf of the Government. The only question that therefore remains to be considered is its removal from there. While the applicant has prayed that the Government be ordered not to restrain him from removing the same, the Government has also in its application requested that the applicant be restrained from removing/extracting or exporting timber from beyond the territory of Azad Kashmir. At this stage of writing the judgment I sent for Mr. Mohammad Hanif Bhatti, counsel for the Government to ascertain what relief they were actually seeking through the application. He stated that he did not press his application for injunction as, in his view, it was unnecessary in view of the contentions raised on behalf of the Government, the Government order under the Emergency Powers Act and general powers of the Forest Department. Here I would like to reproduce the order passed by the Government under the Emergency Powers Act on 7‑7‑1970:‑‑ "OFFICE OF THE SENIOR SECRETARY (HOME), AZAD GOVERNMENT OF THE STATE OF J & K, MUZAFFARABAD Emergency Powers Order No. 1 of 1970. Whereas it is necessary and expedient for securing the defence of the State and preventing Brig. Muhammad Aslam Khan son of Brig. Rehmatullah Khan of Messrs Kashmir Timber Corporation from acting in manner prejudicial to public safety, the Azad Government of the State of Jammu & Kashmir is pleased to order that the said Brig. Mohammad Aslam Khan (Rtd.) shall not enter or cause any person on his behalf to enter, through Azad Kashmir territory, into Compartments No. 10 (b‑part) and 12 (part) east of Cease fire‑Line in the Bandi Ashkot Range of the Keran Forest Division for the purpose of cutting, converting, extracting and appropriating any tree or timber in any form or import into Azad Kashmir Territory such timber from the said area or export any timber so extracted out of Azad Kashmir Territory. A person guilty of contravening this order shall be liable to be punished under section 13‑A of the Azad Kashmir Emergency Powers Act, 1958, as amended." I have considered the applicant's prayer for permission to remove timber from these compartments across the Cease fire‑Line and remove the same to Azad Kashmir. After having given my very earnest consideration to all aspects of the case, it seems that in view of the said Government order published in an Extraordinary issue of the Gazette on the same date, I cannot grant such an injunction to the applicant. It shows that under Emergency Powers Act the applicant stands restrained from removing timber from these compartments situate across the Cease‑fire‑Line to Azad Kashmir or Pakistan. What I am seized with is not the proprietary or otherwise of an order passed by the Government under the Emergency Powers Act. The merits and demerits of this Notification are not subject of an issue before me. Under these circumstances if an injunction is issued requiring the Government not to restrain the applicant, from removing the said timber from across the Cease‑fire‑Line, it would amount to nullifying a Government order with which we are not concerned in this case and which has been brought into existence quite independently of the proceedings before me. In his arguments as well as in the application, objections and the Notice issued on his behalf to the Government by Mr. Justice Mohammad Munir the applicant has termed the Government action as mala fide. Obviously I am not seized with the determination of the correctness or otherwise of the allegation. The matter, it seems to me, is alien to the proceedings before me. However, I have no doubt at all that the timber lying on our side of the Cease‑fire‑Line (Azad Kashmir Territory) should be allowed to be removed from its existing locations so that it is not wasted, damaged or destroyed. This is in accord with the principle inherent in the provisions relating to temporary injunction, namely; to safeguard the property in dispute until the respective rights of the parties are deter mined. I also considered as to which of the parties may be per mitted to remove it in view of the prayer to that effect being made by both of them though Indirectly in that each seeks to restrain the other. I have come to the conclusion that it is the petitioner Brigadier Mohammad Aslam Khan who has decidedly a preference because (a) He has extracted it; (b) For purposes of temporary injunction, prima facie he has a claim over it on the basis of the award irrespective of the fact that it has yet to be either made a rule of the Court or set aside; (c) He must have, as he claims, incurred huge expenditure in bringing it to its present shape; and this labour and expense tilts the comparative balances in his favour as its custodian until the decision in the case. (d) Because he has already a fleet of trucks and an organization, as claimed not denied by the Government, at hand, to complete the operation. Therefore so far as the application of Brigadier Mohammad Aslam Khan for an injunction restraining the Government from interfering in the removal of this timber from its existing locations on this side of the Cease‑fire‑Line is concerned, in my view he has made out a reasonable prima facile case for the grant of such an injunction. Now I come to the question of export. While Brigadier Mohammad Aslam seeks that the status quo be maintained, in the sense that the Government be restrained from preventing Its export, the Government seeks an injunction restraining Brigadier Mohammad Aslam from exporting it. When I asked the learned counsel for Brigadier Mohammad Aslam Khan how it could be a proper exercise of discretion on the part of the Court to allow the subject‑matter of dispute being removed beyond its territorial jurisdiction, he suggested two alternatives; namely: (a) That his client was prepared to give security to the satisfaction of the Court; (b) His client was prepared to give cash security at the rate of Rs. 1.50 per cft. he exports to Pakistan. I have given my earnest consideration to these proposals. Personal security is neither an effective nor desirable substitute for the property involved. It results in multiplicity of proceedings and largely frustrates the very purpose for which it is permitted. As regards the other alternative, it too must be rejected for two reasons:‑ Firstly, because the market price per cft. is many times more than Rs. 1.50 per cft. Secondly, the latter is the rate at which the applicant has been given the timber. If ultimately he is found entitled to it under the award it would be creating no problem but if the timber to be allowed to be exported now at this rate or any part thereof is later found not the property of the applicant, the difference between the market price and the security paid bar him would be very great. As the applicant himself normally lives and resides in Pakistan, no effective remedy may be available against him, in view of the interna tional law governing us. Besides, the property involved in this case being timber, it not liable to easy decay and can remain unharmed for years together while I am prepared to decide the case by the end of this month or the next insha allah should the parties co‑operate to that end. The learned counsel for the Government has referred to some rulings. He relied on P L D 1970 Kar. 332, P L D 1970 S C 139 and P L D 1965 Kar.

603. They relate to principles that govern the grant or refusal to grant temporary injunctions. They are universally the same in our country and have been quoted by me elsewhere. However, it may be mentioned here that P L D 1970 S C 130 relates to Government servants, where the matter has to be approached in a rather different context. The other rulings are briefly discussed below:‑‑ (1) P L D 1964 Lah. 431.‑This ruling has no application to the present case for the following reasons:‑ (i) It was a question of the determination of a contract of lease to work out a coal mine and not as to whether the ownership of the coal already extracted rested with the Government or the contractor as the dispute in the present case really turns out to be. (ii) The Government had neither cancelled the contract nor taken any such action as it has in the present case, as is evident from the following words in the ruling:‑ "At this stage it is only a fear of the petitioner that the Government is likely to cancel the contract but the Government may or may not." (2) P L D 1965 S C 83.‑--It has no application because it was a suit seeking a declaration that a contract of catering still subsisted. It was held that the suit was not maintainable as he was a licensee. The question of the issuance of an interim injunction pending the disposal of the case was not at all involved. (3) P L D 1967 Kar. 508.--‑The learned counsel referred me to page

519. It deals with two rulings laying down that the legal effect of an award as a decree finally determining the rights of the parties will not be there unless it is made a rule of the Court and a decree passed in accordance with it. The question involved in this case was about the applicability of Registration Act to such an award. Besides, the question before me at this time is not whether the property in question, had, under the award legally become the property of one party or the other (read with the agreement); this question has yet to be decided at the time of final determination of the pro ceedings. The question before me now is as to whether the property involved whether it ultimately goes to one party or the other, should be preserved for being made conveniently available to the successful party or allowed to be wasted, damaged or alienated by either party and as to bow best it can be done. It was very strenuously urged on behalf of the applicant on 3rd June that refusal to grant injunction for removal of timber including the bulk of it, lying across the Cease‑fire‑Line which it was claimed was about six lac cft. and its export to Pakistan would result in irreparable injury to him which in their estimation ran into crores of rupees and that it would be very difficult for them to get adequate compensation from the Azad Kashmir Government in view of its meagre sources of revenue. Reference was in this connection made to several notices served upon the Government by the applicant through his counsel, Mr. Mohammad Munir, the ex‑Chief Justice of Pakistan. It was also alleged that the actions taken and contemplated against the applicant were motivated by partisan political considerations and that the public exchequer should not be allowed to suffer for such ends. As the Government had not filed any written reply to the applicant's application for injunction and the property involved very substantial in a small country like ours, I asked the learned Advocate‑General to inform the Court on the next day, after ascertaining from the Government as to whether the possible financial implications of the stand taken by the Government in the matter of the property in relation to the application for injunction, had been looked into by the Government. Yesterday Mr. Hafeez informed the Court that he had been authorised to state that the financial implications had been considered, but on resumed hearing yesterday as my attention was drawn to a Notification issued under the Emergency Powers Act in July 1970 and a Gazette copy was also placed on record, incidentally by the applicant himself, I feel it is no longer possible for me to pass any order with regard to the timber lying across the Cease‑fire- Line and as it constitutes the bulk of the property in dispute and is perhaps the only uncertain element in the dispute between the parties, the question, to my mind, seems to have lost importance. I, therefore, pass the following orders on their respective applications:‑ (a) An injunction is granted in favour of Brigadier Mohammad Aslam Khan applicant and against the Govern ment restraining the latter from taking into possession the timber extracted by the applicant and lying anywhere on our side of the Cease‑fire‑Line namely, the Azad Kashmir territory. (b) The Government is also hereby restrained from interfering except in accordance with law, with the possession and removal up to Muzaffarabad Municipal Limits (included) of the said timber by the applicant. (c) Brigadier Mohammad Aslam Khan is hereby restrained from removing the said timber beyond the municipal limits of Muzaffarabad towards Pakistan and from exporting the same to Pakistan. (d) Brigadier Mohammad Aslam Khan is also hereby ordered to stock his entire timber within the municipal limits of Muzaffarabad or in its vicinity in consultation with the Forest Department in accordance with Forest Regulations, Rules and. Standing Orders issued thereunder. (e) Should the Government take steps as are contemplated in the orders issued to the Conservator by the C. C. F. on 2‑5‑1971, to bring the timber in question lying across the Cease‑fire‑Line, to this side of Cease‑fire‑Line, it should afford the applicant a reasonable opportunity of watching these proceedings which includes preparation of a list of the said timber. This should be done to avoid likely future disputes about its quantity. Brigadier Mohammad Aslam Khan's application for ordering the Government to restrain it from interfering in the removal of the timber by him from across the Cease‑fire‑Line and exporting: the lease timber to Pakistan, is however rejected. Order accordingly.