2013 PLP 333 (CLC)

SHAHID WAHEED, J.

The petitioners through this civil revision have called in question order dated 16-5-2012 passed by the learned Additional District Judge, Sumandri, who affirmed order dated 23-11-2011 passed by the learned Civil Judge 1st Class, Sumandri, whereby an application filed by the respondent under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction was allowed.

2. Briefly the facts of the case are that the respondent being owner of land measuring 209 kanals, 18-1/2 marlas decided to establish a housing colony under the name and style of Suleman Garden and for this purpose he on 2-4-2007 submitted his layout plan to the Town Municipal Authority for necessary approval. The Town Municipal Officer vide Letter No.223 TO (P&C) dated 12-4-2007 informed the respondent that Town Nazim had approved the layout plan subject to: (i) deposit of dues; and, (ii) transfer of land measuring 60 kanals, 18-1/2 marlas in the name of Town Municipal Administration as per Rule 6 of the Punjab Private Site Development (Regulation) Rules, 2005 for the purpose of roads, parks, school and mosque. The respondent deposited the dues i.e. Rs.78750 but did not fulfil the other condition. The respondent, however, as per Rule 8 (4) (iii) of the Punjab Private Site Development Scheme (Regulation) Rules, 2005, for the sanction of layout plan, after getting mortgaged 20% of the saleable area of the scheme vide Mutation No.2629 dated 30-1-2008 in favour of the Town Municipal Administration as security for due completion of development works requested for the issuance of NOC enabling him to get the electrification plan of the housing scheme sanctioned from the concerned Authorities. The Town Officer on 20-2-2008 provisionally approved the layout plan period of one year with a note that the same was approved for the purpose of WAPDA Authorities. It is worth-mentioning here that the District Officer (Revenue), Faisalabad vide Letter No.67/SK dated 1-3-2008 intimated the Deputy District Officer (Revenue), Sumandri, that the respondent vide Mutation No.2629 dated 30-1-2008 has got mortgaged 20% of the property in favour of TMA and asked him to complete Tattimmas and Field Book. Later on, the Town Officer (P&C) in respect of external electrification of housing scheme confirmed the approval of layout plan to the Manager (P&D) Faisalabad Electric Supply Corporation vide letter dated 15-4-2008 as well as to the Executive District Officer (Revenue), Faisalabad vide letter dated 4-8-2008. After scrutiny the petitioners vide Letter No.485/TO (P&C) dated 8-2-2011 informed the respondent that his layout plan for a private housing scheme was not in accordance with the provisions of the Punjab Private Site Development Scheme (Regulation) Rules, 2005 and, therefore, the same was not approved by the competent authority. The respondent was directed to re-submit the layout plan of the housing scheme. The Town Municipal Officer vide Letter No.495/TO (P&C) TMA (S) dated 26-2-2001 requested the Deputy District Officer (Revenue) Sumandri, for stoppage of sale deeds and mutations of un-approved housing scheme of the respondent. Feeling aggrieved, the respondent instituted a suit for declaration and permanent injunction against the petitioners and called in question the above stated two letters dated 8-2-2011 and 26-2-2011. The respondent along with plaint also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction. In response to summons, the petitioners appeared before the learned trial Court and contested the suit by filing a written statement. The petitioners also resisted the application for grant of temporary injunction. Learned trial Court vide order dated 23-11-2011 accepted the application for grant of temporary injunction. The petitioners, being aggrieved, preferred an appeal before the learned Additional District Judge but the same was dismissed vide order dated 16-5-2012. Hence, this petition.

3. Learned counsel for the petitioners submits that the learned Courts below misconstrued the Letter No.67/SK dated 1-3-2008 issued by the District Officer Revenue, Faisalabad, as approval of the housing scheme; and, that layout plan of the housing scheme was not approved by the competent authority as the same did not conform to the requirement of the Punjab Local Government Ordinance, 2001 and provisions of the Punjab Private Site Development Schemes (Regulation) Rules, 2005. In this regard learned counsel for the petitioners placed reliance on an unreported judgment passed in Writ Petition No.10401 of 2008. Learned counsel for the petitioner further submits that the principle of locus poenitentiae is not attracted to the facts of the case as an illegal order cannot be allowed to be perpetuated. Learned counsel in this regard placed reliance on THE ENGINEER IN CHIEF BRANCH through Ministry of Defence Rawalpindi and another v. JALALUDDIN (PLD 1992 SC 207). Conversely, learned counsel for the respondent submits that the petitioners after approving the layout plan cannot rescind it as per principle of locus poeniteniae. In this regard he made reference to the PAKISTAN through The Secretary, Ministry of Finance v. MUHAMMAD HIMAYATULLAH FARUKIII (PLD 1969 SC 407), CHAIRMAN, SELECTION COMMITTEE/ PRINCIPAL, KING EDWARD MEDICAL COLLEGE LAHORE and 2 others v. WASIF ZAMEER AHMAD (1997 SCMR 15), CHIEF SECRETARY, GOVERNMENT OF SINDH AND ANOTHER v. SHER MUHAMMAD MAKHDOOM and 2 others (PLD 1991 SC 973); and, that as per principle of peri delicto interim injunction granted in favour of the respondent cannot be recalled. In this regard he made reference to the case of TULIP POLYBAG and others v. ADDITIONAL COLLECTOR (ADJUDICATION) CENTRAL EXCISE, LAHORE (2002 YLR 1680) and GHULAM AKBAR KHAN v. HAJI SHER JAN and others (1989 CLC 1789).

4. I have heard the learned counsel for the parties and perused the record.

5. The respondent for developing a housing colony at his property submitted the layout plan to the TMA for approval. The TMA firstly on 12-4-2007 provisionally approved the layout plan subject to deposit of dues and transfer of land measuring 60 kanlas, 8-1/2 marlas in the name of TMA for roads, parks, school and mosque; and, secondly on 20-2-2008 provisionally sanctioned the layout plan for a period of one year for the purposes of WAPDA Authorities so that the respondent may get approved electrification plan for the housing scheme. Before proceeding further it is worth-mentioning here that prior to sanction of layout plan the developer as per Rule-8(4)(iii) of the Punjab Private Site Development Scheme (Regulation) Rules 2005 is required to mortgage 20% of the saleable area of the scheme as security in the name of Tehsil Municipal Administration for due completion of development work. In view of the said provisions, the respondent vide Mutation No.2629 dated 30-1-2008 got mortgaged the property in favour of the Tehsil Municipal Administration and this fact was conveyed to the Deputy District Officer (Revenue), Sumandri vide Letter No.67/SK dated 1-3-2008. This letter does not say that the layout plan of the housing scheme was finally approved by the competent authority. The condition stipulated in letter dated 12-4-2007 qua transfer of land for purpose of roads, parks, school and mosque was not complied with by the respondent and, therefore, TMA never issued a final sanctioned layout plan. The respondent has failed to bring on record any material/document whereby he was permitted to develop scheme, raise construction and sell plots in violation of law. In this perspective the principle of locus poenitentiae does not attract. Similarly, the principle of pari delicto, as canvassed by the learned counsel for the respondent, is not attracted for the reason that the petitioners have not committed any violation of law. The petitioners being public functionaries are performing their duties in accordance with the provisions of the Punjab Local Government Ordinance, 2001 and the Punjab Private Site Development Schemes (Regulation) Rules, 2005. It is settled principle of law that construction should be made after obtaining approved layout plan from the competent authority and the court cannot permit construction not duly approved by the Authority because such permission would amount to bypassing mandatory requirement of law of obtaining approved plan before raising construction and clothe it with legitimacy under order of the Court. In this regard reference may be made to the case of Mst. Hawa Bai v. Haji Ahmad and others (1987 CLC 558) and Swet Rajhansh Co-operative Society Ltd v. Surat Municipal Corporation (AIR 1995 Guj. 60). Besides above, in the given facts and circumstances of the case injunction as per bar contained in section 56(f) of the Specific Relief Act, 1877 could not be granted. It is settled principle of law that no stay order can be granted, which interference in the performance of public duty, merely for the reasons that as a result of act an individual will suffer monetary loss which can be measured and compensated in terms of money. In this regard reliance is placed on PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through its Project Director v. PAKISTAN ATOMIC ENERGY COMMISSION EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD., ISLAMABAD (PLD 1993 Lahore 237) and Mst. KHURSHEED BEGUM and 92 others v. K.D.A. and others (2003 YLR 1478).

6. I am constrained to observe here that in such like case, public interest is one of the material and relevant consideration in either exercising or refusing to grant interim injunction. It would be a gross violation of law and grave injustice to the public at large if a developer is allowed by way of interim injunction to develop a housing scheme without wide roads, a park, graveyard, school, mosque and other allied facilities. Pakistan is a welfare State governed by the Constitution which holds a place of pride in the heart of its citizens. It seeks to improve the economic and social status of the citizens on the basis of Constitutional guarantees spelled out in its provisions. We live in an age which recognizes that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every citizen under Article 9 of the Constitution Islamic Republic of Pakistan, 1973. And, so in the discharge of its responsibilities to the people, the State has to ensure development of housing schemes in accordance with law and human dignity. Tendency of unauthorized construction and unauthorized encroachment is increasing day by day and such activities are required to be dealt with firm hands. In recent times the courts have come across several cases where unscrupulous builders and developers have misused and abused process of Court. The usual modus operandi adopted by such persons is to obtain interim injunctions/orders which inevitably remain in force for a long time and even during the said period further unauthorized construction is raised by misusing the interim orders granted by the Court. An injunction, therefore, cannot be granted in favour of a person if he is proceeding to act contrary to law or is trying to make certain constructions which are not permissible or which have not been permitted or which are contrary to granted sanction. In the instant case the respondent has failed to bring on record any document or evidence showing his work/construction legal and in accordance with law. The respondent is also unable to rebut the violations stated in the letter dated 8-2-2011 issued by the Town Officer. The Tehsil Municipal Authority which is an authority constituted under the law to regulate construction and development of housing schemes can certainly maintain the present petition against a tort feasor and a wrongdoer and pray for recalling of injunctive orders passed by the Courts below on misconception of facts as in these circumstances, the respondent was not entitled to seek the equitable jurisdiction of the court for obtaining an interim injunction which tantamounted to legitimizing his illegal activities.

7. The respondent has failed to make out a prima facie case which is an essential ingredient for grant of temporary injunction but this fact was not properly appreciated by the Courts below while granting temporary injunction in his favour.

8. In view of above, this civil revision is allowed by setting aside order dated 26-5-2012 passed by the learned Additional District Judge and order dated 23-11-2001 passed by the learned Civil Judge 1st Class, Sumandari, and the application filed by the respondent under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction is dismissed without cost. MH/T-27/L Revision allowed.