1995SCMR705 (PLP)

NASIM HASAN SHAH, J.‑‑‑The petitioner is a Dealer of Pakistan Burmah‑Shell Limited (respondent No.2 herein) and was running a Petrol Pump at the junction of Empress Road and Link Brandreth Road opposite Government Transport Bus Stand near the Lahore Railway Station, Lahore. The site was leased out to Burmah‑Shell Limited (respondent No.2 herein) in January, 1956 by the Lahore Improvement Trust for a period of 30 years. Later on, respondent No.1 (District Magistrate) gave a notice that the said site in question was Nazool land and, therefore, the rent in question should be paid to the Board of Revenue. However, the lease in question was regularised by the Government of the Punjab and it was to enure until 4‑1‑1986. According to the present petitioner he executed works of a permanent nature at the site, spending over Rs.Z,50,000 in remodelling the said petrol pump. All this was done with the approval of the Lahore Development Authority, the successor of the Lahore Improvement Trust. On 20‑12‑1982, the District Magistrate, Lahore (respondent No.1 herein); however, issued a notice to Pakistan Burmah Shell Limited that as the petrol pump in question was found to obstruct the smooth flow of traffic and was dangerous to public safety it should shift the site of this‑Petrol Pump by 5‑1‑1983, failing which the N.O.C. would be withdrawn. The petitioner herein challenged the validity of this notice by filing a suit for permanent injunction before the Civil Judge, First Class, Lahore, to restrain respondent. No 1 from obliging the petitioner/plaintiff to change the site of the petrol pump in question, before the expiry of the lease in favour of defendant No. 2 and further prayed for an ad interim injunction against his forcible ejectment from the site of the petrol pump, till the disposal of the suit. The learned Civil Judge, First Class, Lahore, by his order dated 18‑7‑1983, granted an ad interim stay to restrain respondent No 1 from ejecting the petitioner till the final disposal of the suit or the expiry of the lease period i.e. January, 1986, whichever was earlier. The District Magistrate, Lahore, filed an appeal against the said order which was accepted by the Additional District Judge, 'Lahore, vide his judgment dated 5‑2‑1984, whereby the order of the trial Court dated 18‑7‑1983 was set aside and the‑ application for temporary injunction of the petitioner herein was dismissed. The petitioner thereupon moved the High Court by a revision petition, which, however, was dismissed in limine by a note to elaborate order passed on 7‑2‑1984 by a learned Single Judge of the Lahore High Court. Hence this petition for Leave to Appeal. The matter came up in Chambers before one of us (Nasim Hasan Shah, J.) on 13‑2‑1984. On the said date, notice was directed to be issued to respondent No.1 for 25‑2‑1984 on which date petition was also ordered to be fixed for hearing. In the meanwhile, status quo was ordered to be maintained. The petition has accordingly come up for hearing today as ordered. Respondent No.1 was served by the office on 21‑2‑1984 and a copy of the notice issued by this Court was received by the clerk concerned in the office of the District Magistrate at 11‑30 a.m. However, no one has appeared today on his behalf. After hearing the learned counsel for the petitioner we find some force in the contention of the petitioner that after issuance of the "No Objection Certificate" (N.O.C.), the District Magistrate become functus officio to withdraw it. In this connection, he relied upon Burmah Shell Oil Storage and Distributing Co. Pakistan Ltd. and another v. The Deputy Commissioner (District Magistrate), Karachi (1970 SCMR 63) which, prima facie, supports this contention. The petitioner, therefore, did have an arguable case. The learned trial Court had also found that the petitioner had invested huge amount in connection with the remodelling of the petrol pump and would, therefore, suffer irreparable loss if he was ejected from the site in question, keeping in view that the lease was to expire by January, 1986, the balance of convenience was also found to lay in the maintenance of status quo. He, therefore, granted ad interim injunction till the disposal of the suit or the expiry of the lease period i.e. January, 1986, whichever was earlier. The order of the Additional District Judge dated 5‑3‑1984 setting aside the said order and that of the High Court dated 7‑2‑1984 affirming the same do not appear to be sound in law. Despite the District Magistrate (respondent No.1) having been served on 21‑2‑1984 he has not cared to appear nor deputed anyone else to represent him before us. We are, therefore, constrained to proceed ex parte against him. This petition is converted into an appeal and allowed. The orders of the Additional District Judge dated 5‑3‑1984 and that of the High Court dated 7‑2‑1984 are set aside, while the order of the learned trial Judge dated 18‑7‑1983 is restored. Parties are left to bear their own costs. AA./F‑305/S Appeal accepted.