P L D 1986 Karachi 130 (PLP)

The learned trial Court passed an order on 20‑8‑1980 holding that the suit was not barred under Article 131 of K. D. A. Order for want of notice and the provisions of Sind Public Property (Removal of Encroach ment) Act, 1959, but rejected the plaint on the ground that no permanent injunction could be granted against the respondents as they are Government Departments and the suit is, therefore, barred under section 56(d) of the Specific Relief Act. The applicant filed an appeal.‑ which was dismissed by the learned First Appellate Court, holding the same view. At this stage. it is pertinent to point out that both the learned Courts below have observed that the applicant has no right or title in respect of the plot where he has his shop and has illegally encroached upon it. It seems that both the learned Courts were of the view that the applicant is an encroacher, and is in unauthorised occupation of the disputed plot of land. From a reading of the plaint such a result cannot be achieved. Mr. Hussain Adil Kbatri the learned counsel for the applicant has contended that for the purpose of Order V11. rule 11, C. P. C. the aver ments made in the plaint are to be taken as correct and if on the basis of such averment it can be concluded that the suit is barred by any provision of law, the plaint can be rejected. In the present case, the applicant had clearly pleaded that in the. year 1974 he was shifted by K. D. A. from Plot No. S D 5‑A to outside portion abutting the said plot, where he construed the shop. From these averments and sub sequent allegations made in the following paragraphed the disputed plot plaint it is not possible to deduce that the applicant has occupied the disputed plot unautholisedly or encroached upon it. These averments are sufficient to lend support to the contention that in the plaint he has pleaded a permis sive possession from K. D. A. Mr. Kazilbash the learned counsel for the respondent No. 1 has contended that the applicant at no stage has produced any written permission or document to substantiate this contention. In my view that stage has not yet. come. The contention of the learned counsel for the respondent No. I may be correct but the question of substantiating and proving these allegations will arise when the parties are required to bring their evidence and prove their contentions. Any averment made in the counter‑affidavit or any fact introduced orally during argument or otherwise which does not form part of the plaint cannot be taken into consideration, while considering application under order VIA, rule

11. The plaint can he rejected :only on the basis of the averments made in the Plaint which for purposes of Order VII, rule 11, C,P. C. are treated to be correct. Unless it can be shown that from the 'averment in the plaint it is clearly barred by any provision , the plaint cannot be rejected by relying on facts and averments Which are 'not part of the plaint and can be found affidavits and documents filed by the defendant. Both the Courts below have resorted to section 56(d) of the Specific Relief Act which reads as follows:

56. Injunction cannot be granted. (a) . (b) .. (c) . (d) to interfere with the public duty of any Department of the Central Government or any provincial Government or with the sovereign act of a foreign Government." According to the learned Courts below the respondents being the Department of a Provincial Government are covered by this provision of law and therefore as they are functioning and taking acting in discharge duty, no interference can be made. Mr. Kizalbash the learned counsel for the respondent No.1 has contended that K. D, A, is a Department of the Government, and therefore, no order of injunction can be passed interfering to the discharge of its duty. Karachi Development Authority is a body corporate, established dent's order V of 1957, by Presidents order V of 1957. Under Article 3(2) it is a body corporate known by the name of Karachi Development Authority, having perpetual succession and common seal with power subject to the provision of the order to acquire and hold properties both movable an and can sue and be sued. Under Article 4 the Management d immovable/ of the K. D.A. is generally under the direction and administration of the governing body which is constituted under Article

5. The governing body shall be guided on ‑to time by such directions, as the Provincial Government may from time to time issue. In the question whether a matter is a matter of policy or not the decision shall vest with the central Government which will be final. The chairman and the Director-General are appointed on such terms and conditions as the Provincial Government may determine. From these provisions it is clear that the Karachi Development' Authority as described by the Order itself is a corporate body having an independent juristic person which can own and dispose of immovable, and movable properties and can sue and be sued. These powers are conferred by virtue of Order V of 1957 and nowhere it has been described as a Department of the Government and or even functionary of the Government It is true that the Director‑General and the Members of the governing body are appointed by the Provincial Government and in matters of policy guidance is also sought by the Provincial Government but these factors do not render the Karachi Development Authority as a Department of the' Government. There are many Nationalised Banks and Corporations established under statute and all of them have been given separate legal and independent status as a corporate body completely different from the Government. In this regard reference: can be made to a judgment in Rice Corporation of Pakistan Ltd. v. Sind Labour Appellate Tribunal and others C. P. No. D‑1584 of 1980, where this corporation was held not to be climb of the Government but an independent corporation. In my view the Karachi Development Authority cannot be treated as a Department of the Provincial or Central Government. The situation seems to be complicated by the interference of the respondent ho. 2 who has been described in the plaint as Assistant Commis sioner, Liaquatabad Sub‑Division, who is alleged to have come to the site and threatened the plaintiff' to dispossess him. Mr. Abdul Sattar Sheikh the learned Additional Advocate‑General contended that the respondent No. 2 is a Government Officer, and he was taking action in discharge of his official duties and, therefore, as provided by section 56(d) injunction cannot be granted to interfere with the public duty of any Department of Central Government or Provincial Government. The question whether a Government Officer is a Department of the Government is a debatable point. The term `Department' as mentioned in Chambers Twentieth Century Dictionary means. 'A part, a special or allotted function, sphere of activity, duty or competence, a section of an administration, University, office or Organisation.' Black's Law Dictionary has defined as follows:‑ "Department.‑One of the territorial divisions of country. The term is chiefly used in this sense in France, where the division of the country into Departments is somewhat analogous, both territorially and for governmental purposes, to the division of an American State into counties. One of the major administrative divisions of the executive branch of the Government usually headed by an Officer of cabinet rank; e. g Department of State. Generally, a branch of division of govern mental administration. Also, a division of a business, or of something comparable thereto." A Department as used in section 56(d) connotes an establishment, division. unit, faculty or branch of administration under the control of the Government at higher level completely separate from its Officers. The Officers cannot be called a Department of the Government. They are merely functionaries appointed to exercise the powers as provided under the law,' Rules or regulations with a view to carry out the policy object an 1d priorities as Paid down by the `Department'. In our polity one can find Departments like Education Department, Law Department and Science, and Technology Department, Health Department, Home Department and General Administration Department etc. In this regard reference can be made to Ramchand v. District Magistrate, Allahabad and others AIR1952All520, where, similar question came under consideration and after an exhaustive discussion and citing several authorities it was observed as follows:‑ It follows from what I have said above that Department is a particular activity or a branch of Government under the political charge or control of a Minister or a Minister of State responsible to the legislature. It must be borne in mind that, the words used in section 56 are `Department of the Union Government of State Government.' Surely an Officer serving in a Department is not the Department and cannot have a representative capacity. To hold otherwise would be to hold that an excise inspector, sub‑inspector of police, a Kanungo or a Patwari is a Department. Any such conclusion would be inconsistent with the whole theory on which responsible Govern ment, i. e a Government deriving its authority from the legislature and removable by it rests. The inference to be drawn from all this discussion is that a Department is a unit or branch of Govern ment, either Union or State, under the political control of a Minister or Secretary of State or President of the Board. Individual Officers serving under a Department do not constitute a Department. The Department has an entity distinct and separate from the Officers serving under it. I am clear in my mind, therefore, that there is no force whatsoever in the argument that the District Magistrate is a Department and, therefore, immune from the power of issuing injunctions which Courts enjoy.' To illustrate the point at issue it would be proper to refer to Fazal Elahi Ejaz v. Government of the Punjab PLD1981 SC

137. In this case the Head masters; Headmistresses of the nationalised schools challenged the notification issued by the Governor and Circular issued by the Director of Public Instructions Punjab on the ground that the decategortsation and the preparation of the combined seniority list is bound to adversely affect their status guaranteed to them. While refusing to grant temporary injunction it was observed:‑ "We find that on the one hand there is question of the implementation of the educational policy for the whole of the country by the Government and on the other hand. there is this apprehension of the danger to the status of some of the petitioners who are threatened with decategorisation and the preparation of a combined seniority list during the pendency of the appeal. In The Province of West Pakistan and another v. Malik Asghar Khan 1971 S C M R 569 this Court observed: 'Issuance of temporary injunctions to the Government Department in respect of service pattern is bound to disturb their working and they should not ordinarily be issued unless there are compelling reasons to do so because balance of convenience ordinarily would not lie in disturbing the .administrative arrangements of the Depart ment. There can be no question of any irreparable injury being caused to the employee of refusing the temporary injunction to him as he can claim a monetary compensation in case he succeeds in his suit and the orders of the Government reverting the respon dent to his original post are finally held as illegal and without jurisdiction.' These observations are quite apt and there are no compelling reason to disturb the working of the Department in this case. In this connection section 56(d) of the Specific Relief Act lays down that an injunction cannot be granted to interfere with the public duties of any Department of the Federal or provincial Government. On these principles, therefore, the balance of convenience does not lie in the issuance of any temporary injunction in favour of the petitioners." From the observation. the concept of Department can be clearly under stood. In the present respondent No. 2 is the Assistant Commissioner who is also designated as Sub‑Divisional Magistrate deriving his powers from the Code of Criminal Procedure and other legislation under which h can take action in public interest, but such actions or powers conferred o him do not make him a Department of the .Government. It is well‑settled that if a Government Officer acts illegally, without jurisdiction or mala fide injunction can be granted against him. The only limitation placed by la is that injunction cannot be granted against a Department of Government as, such injunction is likely to disrupt and hamper the smooth working of Government and is likely to create more confusion. I am, therefore, E of the view that the respondent No. 2 is not a Government Department. The provisions of section 56(d) were, therefore, not applicable to the present case, and on averments made in the plaint it could not have bee rejected on this ground. A Civil Court has the power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to a Department, Officer, Corporation, statutory body o Tribunal. Section 56(d) saves such acts which are done within the power of the bodies mentioned in it. Where a public body is vested with discretion under a statute an injunction cannot be granted to restrain such body from exercising its discretion or discharging its obligation. Mr. Kazilbash the learned counsel for the respondent No. 1 contended that the suit is barred against K. D. A. as notice under Article 131, K. D. A. Order V of 1957 has not been served, and such averment has not been made in the plaint. Such objection was raised by the learned counsel in hi application under Order VII, rule I1, C. P. C. which was rejected an appeal against that order was not ~led by K. D. A. The first Appellate Court did not take note of this objection from which it means that this F plea was not raised in that, Court., In these circumstances at this stage I am not inclined to entertain this objection. Even if, for argument sake it is accepted that such objection can be raised and the plaint should be rejected for want of notice under Article 131 the question will arise whether plaint can be rejected against a co‑defendant only. In National Bank of Pakistan Karachi v. Fakir Muhammad Malik and another (P L D 1977 Kar, 256), it leas held that a plaint cannot be rejected in part against one of the defendants. Therefore for want of notice under Article 13i the plaint cannot be rejected against K. D. A. only. Both the impugned orders are, therefore, set aside. Mr. Kazilbash the learned counsel for K. D. A. has made a statement that the K. D. A. has not taken any action against the petitioner for his ejectment from the disputed plot, but if in future any action is taken, it shall be in accordance with law. Mr. Abdul Sattar Sheikh the learned Additional Advocate‑General stated that the respondent No. 1 will not take the alleged action as apprehended by the plaintiff. He further states that whenever any action is to be taken in future, it shall be taken in accordance With law. In view of the statement made by the learned counsel for the respondent Mr. Hussain Adil Khatri the learned counsel for the applicant/plaintiff states that he would not press for the reliefs sought in the plaint. Accordingly the suit is dismissed as withdrawn subject to the statement made by the learned counsel for the respondents, with no order as to cost. A. A. Order accordingly.