1996 PLP 1262 (CLC)

3. The controversy as alleged in this suit, for the first time arose in the month of June, 1992 when the defendant No. l wrote to the defendant No. 2 pointing out unauthorised construction allegedly raised by the plaintiff on the property in question. Again in January, 1993 the defendant No. l pointed out the alleged unauthorised construction of the plaintiff to the defendant No.2. However, the defendant No. l on or about 27‑4‑1993 issued a show‑cause notice to the plaintiff (Annexure ' H' ‑ to the plaint) directing him to stop the unauthorised work on the site and to rectify the violation carried out till then and as indicated in the said letter. The unauthorised construction as pointed out in the said letter was mentioned as "Constructed excessive projections and excessive covered area which is not approved in building plan". Therefore, on or about 4th July, 1993 the defendant No.2 also issued notice to the plaintiff under section 256 of the Cantonments Act, 1924 calling upon the plaintiff to demolish and remove the unauthorised construction, otherwise the same would be demolished within 15 days by the Cantonment Board. In these circumstances, the plaintiff has filed this suit for declaration and permanent injunction. 4. 1 have heard Mr. Abid Zuberi, Advocate on behalf of the plaintiff and Mr. Nazar Hussain Dhoon, Advocate for the defendant No.l. The defendant No.2, namely, Cantonment Board despite service has chosen not to file any counter‑affidavit or written statement. Accordingly, on 12‑9‑1994, learned Additional Registrar (O.S.) debarred the defendant No.2 from appearing and defending the above suit. Mr. Abid Zuberi has contended that the letter dated 27‑4‑1993 issued by the defendant is illegal, unauthorised as well as mala fide inasmuch as the defendant No.1 has no authority to determine and resume ' C' lease by taking over the physical possession of the plot in land. This proposition has been vehemently disputed by Mr. Nazar Hussain Dhoon.

5. The 'C' lease under reference was executed on 1st January, 1987 by the Military Estate Officer, Karachi Circle, on behalf of the President of Pakistan in favour of the plaintiff which will expire on 14‑7‑2055. This document has not been denied by either of the defendants. According to the covenants the lessee (plaintiff) is required to pay all municipal taxes, dues and charges from time to time and is also required to pay all the development charges and other dues as may be demanded from time to time by the Authority. The Authority has been, defined in this lease agreement as Pakistan Defence Officers' Housing Authority, Karachi. According to clause 5(b), the lessee is also required to "comply with and observe all the rules and bye‑laws of the local authority incharge of the area". The conditions for determination or resuming the lease property is mentioned in clause 7 which authorises the lessor, namely, the President of Pakistan to determine the lease and to enter upon the suit plot irrespective whether any building, erection, building materials or the like is standing thereon if the lessee commits any breach of the conditions of the lease. The covenants of this ' C' lease clearly indicate that the only authority entitled in law to determine the lease or to resume the land is the lessor who is the President of Pakistan or his delegatee which in the instant case is Military Estate Office. Therefore, in my view the defendant No.l is neither authorised nor competent to take any action for the determination of the lease or for resumption of plot as threatened by them vide their letter dated 27‑4‑1993.

6. In somewhat similar circumstances, a learned Division Bench of this Court in the case of Muhammad Arshad Jalil v. Pakistan Defence Officers' Housing Authority and others (PLD 1992 Karachi X04) considered the implication of Article 17 of Order 7 of 1980 and held that this Article does not extend any power to the defendant No. l for the cancellation of lease or grant of lands which are deemed to have been executed or granted by the Authority under clause ' C' to the Article 17 of the said Order. The same principle was again reiterated by the same Bench in the case of Musiafa Layhani, Advocate v. Pakistan Defence Officers' Housing Authority (1994 MLD 717).

7. It is pertinent to note that Article 18 of the President's Order 7 of 1980 empowers the Executive Board to run the affairs of P,D.O.H.A. The said Executive Board is consisted of Corps Commander posted at Karachi at its President .and one Naval Officer not below the rank of Commodore, a serving Officer of Air Force not below the rank of Air Commodore and a serving Army Officer not below the rank of Protector, the Administrator and coopted members to be appointed by the‑Executive Board. Any allotment, transfer, licence or lease issued in respect of any plot is to be cancelled by this Execi4tive Board, in case if the allottee, transferee, licensee or lessee fails to pay tile dues or instalment including the development charges. The Executive Board i5 further authorised under this Article to resume the land in special case, if the dues are not paid within six months from the date of demand in writing.

8. Mr. Abid Zuberi, Advocate for the plaintiff in support of his contention, that the defendants are not entitled in law to finally determine the lease and for resumption of land, has relied upon the case of M. Ghani v. M.A. Mallick & Brothers and 3 others (1973 SCMR 90) where the Hon'ble Supreme Court of Pakistan refused to grant leave to the, petitioner Who was a landlord against the tenant who was respondent No. 1, on the grounds that "until and unless the tenant was ejected in due process of law he pad right to be on premises and he could not be evicted by the Assistant Registrar". Their lordships observed that the arguments of the learned counsel of the petitioners, in the reported Gasp, that the tenant/respondent was a defaulter, therefore, such tenant had no legal or moral right to be on property, as 'untenable'. Mr. Abid Zuberi has also referred to the case of Haii Yaqoob Khan v. Murrte Cantonment Board, Murree (198'7 CLC 108) in support of his contention that the defendants are not entitled to resume the land and to cancel the C' lease.

9. The Executive Board of the Defence Housing Authority is authorised vide Article 18 of the Pakistan Defence Officers Housing Authority Order, 1980 to cancel any allotment, transfer, licence or lease in respect of any plot, house, project or scheme in case, if such allottee, transferee, licensee or lessee fails to pay the dues or instalments and development charges within six months from the date of receipt of the demand in writing from the Authority. The Executive Board is further authorised to extend the time for payment of such dues. There is no other condition provided in this Order, 1980 authorizing the D.H.A. to determine the lease except in case of non‑payment of dues., The powers, duties and functions of the Executive Board have been defined in Article 9(2)(viii) of the Order, 1980 which authorises the Executive Board to cancel any housing unit in a plan, housing project or in the scheme, in case of default of payment of instalment or on violation of such condition of project or scheme. The terms 'project' and 'scheme' have been defined in Articles 2(f) and (m) of the Order, 1980 respectively. If Article 9(viii) is read with the two definition clauses as mentioned earlier it would indicate that sub‑clause (viii) to Article 9 of the Order 1980 empowers the Executive Board to cancel allotment of a housing unit in case of default in payment of instalments only and not for determination of lease or resumption of land in case of violation of the building plan for construction.

10. Mr. Nazar Hussain Dhoon has referred to the case of Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Limited and another (PLD 1993 Karachi 190) to support his contention that the working of statutory corporation should not ordinarily be interfered with lightly unless it is shown that some illegality, mala fides or fraud was committed. He has also contended that an injunction is to be granted when all the three ingredients are fulfilled and not merely on the basis of existence of a prima facie case. There is no cavil to the proposition of law that a plaintiff must show that all the three ingredients‑ C exist before obtaining an interim injunction against the defendants. (For further reference, see the cases of Marghub Siddiqi v. Hamid Ahmad Khan (1974 SCMR 519), Zeenat Begum and another v. Jan Mir Khan and 8 others (1985 CLC 2923) and Haji Khan and another v. Government of Sindh and others (1990 MLD 155). .

11. Mr. Abid Zuberi has also contended that the powers to approve building plans for construction and to revoke or cancel the same is with the Clifton Cantonment Board and not with the D.H.A. He has referred to Chapter IX of the Cantonments Act, 1924 section 178‑A of the Cantonments Act, 1924 prohibits all persons from erecting or re‑erecting on any land in a Cantonment except with the previous sanction of the Cantonment Board. Section 184 of the Act, 1924 provides for punishment of fine extending to Rs.500 in case if any one begins, continues or completes erection or re‑erection of a building without complying sections 179 and 180 or section 1810) of the Cantonments Act, 1924, or in case sanction of the building plan is refused or ceased to exist. In section 185 of the Act 1924, the Board is further authorised to direct the demolition or to direct alteration of any building, part thereof so erected or erected after issuing notice to the owner, lessee or occupier. In reply to this argument of the learned counsel for the plaintiff, Mr. Nazar Hussain . Dhoon, learned counsel for the D.H.A. has referred to Article 24(2) of the Order, 1980, to canvass that the Clifton Cantonment Board is subject to the provisions of the President's Order 7 of 1980. No doubt, sub‑clause 2 to Article 24 of the Order 1980 shows that the Cantonment Boards bifurcated under this provision, the provisions of Cantonment Act, 1924, shall apply to them subject to the provisions of the Order, 1980. But interestingly there is no provision in the President's Order 7 of 1980 which empowers the D.H.A. to approve, grant or cancel the ,building construction plan as provided in Chapter XI of the Cantonments Act, 1924. Mr. Nazar Hussain Dhoon has also referred to the case of Hawa Bai v. Haji Ahmad and another (1987 CLC 558) to support his contention that where the construction plan was duly approved by the authority concerned the injunction as prayed in the suit cannot be granted. The facts of this reported case are quite different from the facts of the present case In the present suit, the plaintiff has challenged the authority of the defendant No. l to issue impugned notices. In the reported case, the plaintiff has relied upon the regulations of Karachi Building Cahtrol Authority while in the present case provisions of President's Order, 1980 and Cantonments Act, 1924 are involved.

12. The result of the above discussion is that I am of the tentative view that the two impugned notices issued by the D.H.A. and Clifton Cantonment Board are not in accordance with law and therefore, the plaintiff has fulfilled the condition of establishing a prima facie case. I am also of the tentative view that in case if an interim injunction is not granted to the plaintiff and if the defendants are allowed to act upon the impugned notices it would be the plaintiff who will suffer irreparable loss and injury. The balance of convenience is also in favour of granting this application. (Please see the case of Ismail Brothers v. Kaval Ram PLD 1987 SC 545).

13. In view of the above‑cited law and facts, I hereby grant interim injunction in the following manner:‑ (i) The Pakistan Defence Officers' Housing Authority is restrained from canceling, determining the 'C' lease existing in favour of the plaintiff in respect of property in question till disposal of the suit. (11) The defendants Nos. l and 2 are restrained from demolishing the construction raised by the plaintiff on the property in question and from dispossessing the plaintiff till disposal of the suit.

14. However, the above interim order in the nature of prohibitory injunction, in no manner shall restrain in the defendant No.2, namely, Clifton Cantonment Board from proceeding in a lawful manner against the plaintiff.

15. C.M.A No.2108/94 stands disposed of in view of the above observation A.A./N‑7/K Application accepted.