' This petition is against an order of Mr. Iftikhar Ahmad Cheema, Additional District Judge, Rawalpindi dated 3rd of August 1977.
2. The facts are that an area of 32 acres of land bearing plot No, 4 in Sector H/9 Islamabad was set apart for being developed as orchard by the Capital Development Authority. This area was leased out to H. G. Vallani for 25 years on 24th February 1971, for raising an orchard. On 8th of January 1977 Mr. Vallani applied to the Capital Development Authority for revocation of the lease/licence and it was ultimately revoked on 2nd July 1977. The possession of this property was taken over by the petitioners. When after 2nd July 1977 they were directed to vacate the land in dispute, they filed a civil suit on 7th July 1977 for declaration that the order dated 2nd July 1977 calling upon them to vacate this land was illegal, passed in excess of jurisdiction, null and void and for permanent and mandatory injunction restraining the defendant, Capital Development Authority from taking over the possession of the land and also for mandatory injunction directing the defendant to implement the original order dated 8-1-1977 passed by the Hon'ble Minister for Housing and Works and Urban Development and observe all the formalities of allotment in favour of the plaintiffs.
3. They alleged that they had entered into an agreement with H. Co Vallani who had developed the orchard, planted fruit trees therein and also dug a well. 'On this basis H. G. Vallani had submitted an application to the Capital Development Authority for surrendering the plot so as to make it possible for the plot to be allotted to the plaintiff-petitioners. Simultaneously the plaintiffs moved an application for its allotment in their names. The Minister first allowed the surrender of the plot by Mr. Vallani and then passed an order dated 8-1-1977 for allotment of this land in favour of the plaintiffs and in view of this the plaintiff-petitioners had been in possession of the property and the defendant was legally bound to implement the aforesaid allotment order. Along with the plaint an application for temporary injunction was also filed, which was allowed by the learned trial Court on the 16th July 1977. The Capital Development Authority filed an appeal against this order which was heard by Mr. Iftikhar Ahmad Cheema, Additional District Judge, Rawalpindi. He holding that the plaintiffs have no locus standi proceeded to reject the plaint. The petitioners' case as stated above was based upon an order of the Minister Incharge which has been reproduced by the learned Additional District Judge as follows :- "Chairman, C. D. A.
' If plot No, 4 in the Orchard Farm is vacant, it should be allotted to the applicants."
4. The learned Additional District Judge firstly held that this did not amount to an allotment order and secondly he held that the Minister had no power to make the allotment since this power vested under the Ordinance in the Capital Development Authority only. On behalf of the petitioners reliance was placed upon Article 90 of the Constitution that "subject to the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government consisting of Prime Minister and Federal Minister, which shall act through the Prime Minister who shall be the Chief Executive of the Federation." But the learned Additional District Judge held that this did not take away the discretion of making allotments vested in the Authority and as such the Minister's order was not legal. As stated above finding that the petitioners had no locus standi, he was of the view that this was a fit case not only for setting aside the order of injunction but for rejecting the plaint itself under Order VII, rule 11, C. P. C.
5. The learned counsel for the petitioners argued firstly on the basis of Article 190 in favour of the powers of the Ministers and secondly that the order does not deal with the merits of the temporary injunction. He also argued that in order to take action under Order VII, rule 11 issues should have been struck and fourthly that in any case the appeal being only against the order of temporary injunction the learned Additional District Judge had no jurisdiction to pass any order of rejection of the plaint.
6. I agree with the learned Additional District Judge that the executive authority of the Federation cannot be extended to substitution of the Ministers for all the authorities as described in the Capital Development Authority Ordinance, 1960. The Ordinance vests the Authority with independent power of preparation of master-plan and master-programme (section 11) preparation of schemes (sectionl3) and power of management section 5) in the C. D. A. Section 15 deals with the power of the Authority..4 It does not confer any such power upon the Minister Incharge. The Authority is a corporation having perpetual succession and a common seal (section 4 (2)). It has therefore, an independent authority and existence. In this view of the matter I agree with the learned Additional District Judge that the Minister had no power to allot the property.
7. 1 also agree with the learned Additional District Judge that in the present case there is no allotment in favour of the petitioners. The order reproduced above proves that it is merely a recommendation. It leaves it to the discretion of the Authority to pass an order of allotment after considering the case of the petitioners. The petitioners have therefore, failed to prove that they have a prima facie case. This was not a fit case for issuance of temporary injunction. The appeal as regards the temporary injunction was, therefore, liable to be allowed and the order of the learned trial Court to be set aside. I agree with the learned Additional District Judge to this extent.
8. There is force in the argument that the learned Additional District Judge had no jurisdiction to reject the plaint under Order VII, rule 11 sine his jurisdiction was confined at the most to set' aside the order of issuance of temporary injunction by the learned trial Court. But I am not in agreement that this was a case in which an issue on the question of Order VII, rule 11 ought to have been framed. The matter can be decided by the trial Court under Order VIE, rule 11 on the strength of the allegations made in the plaint itself. It is the petitioners' own case that the allotment was made in their favour by the Minister who as stated above had no jurisdiction. It is not the case of the petitioners that any allotment was made by the Capital Development Authority. Similarly it is not the case of the petitioners that the possession of the area in dispute was given to them by the said Authority. They alleged to have taken possession by virtue of an agreement with H. G. Villani who in the circumstances of having surrendered his right had no right to pass over the possession of the area to the petitioners. It is, therefore, a case in which the learned trial Court ought to have passed an order dismissing the plaint under Order VII, rule 11. Though the Additional District Judge did not have the jurisdiction to do it but even if he had drawn the attention of the learned trial Court to this effect after holding that the plaint did not disclose a cause of action, o it would have been incumbent upon the trial Court to reject the plaint. In these circumstances when the learned trial Court is bound to do what the learned Additional. District Judge has done, even if the case is remanded to it, no useful purpose will be served by the remand of the case. The exercise of the jurisdictions under section 115 being discretionary with the High Court, I do not consider it a fit case for exercise of the discretion in favour of the petitioners.
9. I dismiss the petition but leave the parties to bear their own cost,