1980 PLP 1567 (CLC)

hl. Anwar Sipra for Appellants, S. M. Zubair, A. A.-G. for Respondents Nos. 1 and

2. Rao Hamid Alukhtar Khan with Ch. Abdur Rehman Cheema for Res pondents Nos. 3 to

5. This revision petition under section 115 of the Code of Civil Procedure is directed against the order dated the 12th of September 1979 passed by the learned Additional District Judge, Faisalabad, upholding the order dated the 13th of June 1979 of the learned Additional Administrative Civil Judge, Faisalabad, rejecting the application for grant of temporary injunction.

2. Briefly stated, the facts are that under the Punjab Housing Facilities for Non-Proprietors in Rural Areas Act, 1975, a housing scheme known as 5-marla Scheme was framed. Towards its implementation the Assistant Collector, vide his order dated the 6th of March 1976, allotted certain Ahatas to the petitioner who thereafter were inducted into possession of the allotted plots. The petitioners claim to have built houses at their own expense and have been living there. It is alleged by the petitioners that at the instance of respondents Nos. 3 to 5 their allot ments have been cancelled by the Assistant Collector vide his order dated the 19th of December 1978. By means of a suit the petitioner, on a number of grounds, have challenged the order of cancellation passed by the Assistant Collector. It has, inler alia, been pleaded by the peti tioners that the Assistant Collector passed the order without notice to the petitioners. In the suit the petitioners also filed an application for the grant of temporary injunction which was rejected by - the learned Civil Judge who opined : "As the order to dispute has been passed keeping in view the welfare of the people and plaintiffs have also be provided with alternative accommodation for this purpose, they have got no prima facie case in their favour." This order was unsuccessfully challenged before the learned Additional District .fudge. The petitioners I have stow invoked take revisional jurisdiction' of this Court,

3. Learned counsel for the petitioners has contended that the Courts below have not judicially considered the ingredients regulating the grant of temporary injunction and the impugned orders rest on extraneous and irrelevant factors. He urged that the order passed by the Assistant Collector being violative of the principles of natural justice is void ab initio. The learned counsel took me through the various provisions of the relevant Act and the rules made thereunder and strenuously argued that the said order is in breach of those provisions. My attention was also drawn to the report dated the 26th of December 1978 of the local commissioner and submitted that the balance of convenience lay in protecting the possession of the petitioners and restraining the respondents from demolishing the houses. Any interference in the petitioners' possession it was urged, was bound to cause irreparable loss and injury to them. He also argued that the Courts below, in the exercise of their jurisdiction have committed material irregularity by misappreciating the report of the local commissioner and resting their decision on irrelevant and disputed facts. He refuted if any alternative accommodation had been provided to the petitioners. Explaining this, the learned counsel submitted that mere allotment of other plots in a different area without any construction thereon could not be called as "alternative accommodation". The question of welfare of the public, according to the learned counsel, is irrelevant and inapplicable to the facts of the case in band. In support of his submission the learned counsel, cited at the bar the case of Jamiyat Ali v. Mrs. Chemon Ara Begum (P L D 1968 Dacca' 190).

4. Learned Assistant Advocate-General, Punjab, who represented respondents Nos. 1 and 2, has supported the orders passed by the two Courts below. He submitted that the transmission 'line of 500 K. V. is passing through this land and, therefore, it is in the welfare of the public that no houses exist underneath or in the vicinity of the above-referred installation. He next contended that since the petitioners have already been allotted alternate plots for their houses, they are left with no grievance. He also vehemently argued that this petition was not compe tent. He urged further that as the two Courts below have recorded concurrent finding, no interference under section 115 of the Code of Civil Procedure in the discretionary orders is permissible. In support he placed reliance on the case of Ghulam Rasool and 10 others v. Ghulam Hssain and 2 others (1974 S C M R 145) .

5. Learned counsel for respondents Nos. 3 to 5 adopted the argu ments advanced by the learned Assistant Advocate-General and submitted that the petitioners at best are the allottees and, therefore, not entitled to the grant of temporary injunction especially when public interest is also involved. He placed reliance on the cases of M. A. Naser v. Chairman Pakistan Eastern Railway (P L D 196` Dacca 449), S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) and Administrator, M. C. Jhelum v. Syed Zulfiqar Ali (P L D 1979 Notp 29 at p, 18). 6. 'The case of the petitioners throughout has been that the order of the Assistant Collector is against law and offends the rules of nature justice but strangely enough none of the Courts below has proceeded to consider these material questions. The learned Civil Judge has passed the order in a slipshod manner while the learned Additional District Judge has dwelt on extraneous and irrelevant matters. He has observed ; "In fact there is no resumption of land from the grantees. The appellants did not prefer any appeal against the order of the Assistant Collector whereby they have been provided alternative land keeping in view the aforesaid exigency. The order of the Assistant Collector has, Therefore, become final".

7. It is well-settled law that any order in violation of the principles of natural justice is void ab initio, and in such like eventualities it is not obligatory for the affected person to exhaust the legal remedies available A to him to get redress of his grievances. In the instant case it was pleaded by the petitioners that the A. C. had passed the order without notice and without affording them any opportunity of being heard. This assertion has not been controverted so far by the respondents, and in this view of the matter, prima facie, the order passed by the A. C. appears to be void. As on this ground alone the petitioners have succeeded in establishing a prima facie case, I do not feel any necessity of looking into the other grounds pleaded by the petitioners.

8. In the circumstances and on the facts of the present case there is no force in the contention of the learned counsel for the respondents that the concurrent finding of the two Courts below cannot be interfered with in the revisional jurisdiction. In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan (P L D 1970 S C 139) their Lordships of the Supreme Court were pleased to hold as follows : - "It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts C in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully and arbitrarily." As observed above, the two Courts below have failed to consider the material questions involved in the case and have disposed of the matter bringing in extraneous and irrelevant matters. The plea based upon the principle of natural justice was the most important question raised by the petitioners but still the same has not judicially been considered by the learned Additional District Judge who instead, it appears to me, was influenced by the plea of public welfare raised by the respondents. It must be remembered that the rules of natural justice cannot be sacrificed even in cases where welfare of the public is involved unless it is soy provided by the law. In this view of the matter I am of the considered opinion that the orders of the two Courts below are arbitrary and fanciful. Respectfully following, therefore, the law laid down by their Lordships of the Supreme Court, I bold that this petition is competent.

9. In his order the learned Addl. District Judge has pointed out the fact that the order passed by the learned Assistant Commissioner is dated 14th December, 1978 and not 19th December, 1978 which had been impugned by the petitioners. A certified copy of the order dated 14th December, 1978 has been placed on the file of this Court which postulates that the land measuring 109 kanals has been excluded from the original scheme and instead some other area has been reserved. At any rate the ultimate result of this process is that the allotments previously made stand annulled. The fact remains that the petitioners have called .in question the validity of that order passed by the Assistant Collector which had interfered with their valuable rights, privileges and facilities. A mere misdescription of the order cannot be viewed with any suspicion which at best is a mistake on the part of the petitioners. . With the permission of the Court it could be corrected without least changing the nature of the suit or causing any prejudice to the respondents.

10. Now I am left to consider the other two factors regulating the grant of temporary injunction namely, balance of convenience and irreparable loss. It is an admitted fact that pursuant to the allotment orders the petitioners were put into possession of their respective Ahatas. The local Commissioner has reported that the petitioners had built the house and had been living therein. The questions that the petitioners had raised the constructions in breach of the rules and that too, after obtaining the stay order, if proved, may at best disentitle them to the grant of discretionary relief in the nature of a decree or order but to, make it a basis for the purposes of evaluating the ocher two factors is ~ highly erroneous. This is what has been done by the learned Additional District Judge. He observed. "It has been urged on behalf of the" respondents that these houses have been constructed by the appellants after obtaining the stay order from the Civil Court. It appears that the appellants have not come with clean hands. The balance of convenience and irreparable loss are, therefore, not in favour of the appellants". In my estimate to dispossess the petitioners from their houses at this stage is bound to cause irreparable loss and great inconvenience to the: petitioners.

11. For the foregoing reasons, the petition in accepted, the orders passed by the Courts below are set aside and it is directed that during the pendency of the suit the respondents shall not interfere with the possession of the petitioners. It may, however, be recorded that this order will not restrict the authorities constituted under the Act child from passing any order in accordance with the law and after affording an opportunity of hearing to the petitioners.

12. In the circumstances of the case, the parties are left to hear their own costs. M. A. K. Petition accepted.