' MUNIB AKHTAR, J.---: Four applications fall for determination in circumstances presently to be stated. Two applications, being C.M.A. 755 of 2012 and C.M.A. 1850 of 2012, have been filed by the plaintiff seeking interim injunctive relief. On the first mentioned application ad interim status-quo orders were made on 3-2-2012 and on the second application an undertaking was given by the defendants Nos.8 and 9 (the main contesting defendants) through learned counsel appearing on their behalf on 29-2-2012. The third application C.M.A. 1851 of 2012 has also been moved by the plaintiff seeking to amend the plaint, and the last application C.M.A. 2078 of 2012 has been filed by the defendant Nos.8 and 9 seeking recall of the ad interim orders and discharge of the undertaking given by them.
2. The dispute in the present suit arises in connection with five acres of land in Na-class No,92, situated in Deh Maochko, Keemari Town Karachi (hereinafter referred to as the "suit property"). For reasons that will presently become clear, it is important to keep in mind that the suit property is located in or at the aforesaid deli. Learned counsel for the plaintiff submitted that the suit property was granted to one Mr. Abdul Karim on 30 years' lease for poultry farming commencing from 1983 or thereabouts. In or about January, 2004 the leasehold rights were transferred to the plaintiff and, the relevant documents, including the ijazatnama were executed in his favour, which have been placed on the record. The leasehold rights were of course regulated by the Colonization and Disposal of Government Lands Act 1912 ("1912 Act"). Reference must, in particular, be made to condition (4) of the ijazatnama, which reads as follows: "4. The lessee shall utilize the land establish a poultry, farm under intimation to the Deputy District Officer Revenue Karachi, within 5 years of the grant, failing which the land with [sic] if any thereon, shall be liable to resumption without any compensation, for construction of Development of the land carried."
3. Learned counsel submitted that by an order dated 27-11-2010 the Additional District Officer (Revenue) purported to cancel the leasehold rights that vested in favour of the plaintiff on the ground that there had been an alleged violation of the aforementioned condition (4) of the ijazatnama inasmuch as poultry farming had not been commenced on the suit property at all.
Learned counsel submitted that this order was wrong on the facts but in any case was void in law since it was made behind the plaintiff's back and without granting him any opportunity of hearing.
Being aggrieved by this order the plaintiff filed a writ petition in this court, being C.P.No,D-895 of 2011, which was presented on 26-3-2011. It appears that by way of abundant caution an appeal was also filed under the Land Revenue Act, 1967 ("1967 Act"). Learned counsel submitted that by order of the Court dated 8-4-2011, the impugned order dated 27-11-2010, was set aside and the plaintiff was directed to appear before the Additional District Officer on a specified date who was directed to pass a fresh order after giving an opportunity of hearing to the plaintiff.
4. It appears that the plaintiff duly appeared in terms as directed aforesaid and after giving him an opportunity of hearing, the concerned officer by means of the order dated 22-4-2011, impugned in the present suit ("Impugned Order"), once again cancelled the leasehold rights of the plaintiff on account of a violation of condition (4) of the ijazatnama. It is to be noted that the proceedings against the plaintiff were all along taken under section 24 of the 1912 Act. Purporting to exercise the powers vested in him under this provision, the concerned officer ordered that the suit property be resumed. To give effect to this order, the mukhtiarkar concerned was directed to take over possession of the suit property forthwith. The plaintiff however, claims that as on the date of presentation of the plaint, possession of the suit property continued to remain with him.
5. Learned counsel for the plaintiff submitted that while all this was going on, an application was filed by the defendant No,7 with the Chief Minister of the Province, seeking allotment of 10 acres land in Kemari Town. As per the material placed on the record, which is undisputed, an order was made by the Chief Minister on 4-1-2011 for the matter to be examined and put up. Learned counsel submitted that no jurisdiction vested in the Chief Minister to make any such order. It appears that the concerned authorities examined the application made by defendant No,7 and reported that there was no compact area of land measuring 10 acres available in Deh Mochko in Na-class No,92 but there were three areas,, one comprising of 2 acres and the rest comprising of 8 acres. The grievance of the plaintiff is that the suit property, either fully or at least in substantial part, is included in the aforesaid areas as intimated to the Chief Minister in terms as stated above.
6. Learned counsel submitted that thereafter orders were made granting leasehold rights to the defendant No,7 in respect of 10 acres of land in Deh Mochko on 99 years' lease, but that almost immediately thereafter the defendant No,7 sold a portion thereof, being 04 acres, to the defendants Nos.8 and 9 by means of a registered conveyance deed dated 24-9-2011. The plaintiff's case is that a substantial portion of the suit property is included in the aforesaid transaction between the private parties. Learned counsel submitted that at no stage up to the filing of the present suit was the defendant No,7 put in possession of the area in respect of which leaseholds rights were granted to her and that therefore the conveyance of the area of 4 acres from the same to the defendants No,8 and 9 was also without possession having been acquired by the said defendants. As already noted, the plaintiff claims that as on the date of filing of the suit, the possession of the suit property was with him.
7. Learned counsel challenged the Impugned Order on the ground that it was in violation of section 24 of the 1912 Act. Learned counsel accepted that there had been a violation of condition (4) of the ijazatnama inasmuch as although poultry farming had been started on the suit property within the stipulated period, it had subsequently been discontinued. Learned counsel submitted that the original lessee of the suit property (i,e, the predecessor-in-interest of the plaintiff) had started poultry farming on the suit property but for certain reasons could not sustain the same. However, it was accepted that the plaintiff had also not resumed any such business. Nonetheless, relying on the proviso to section 24, learned counsel contended that a straightaway resumption of the property was impermissible since in terms of the proviso the concerned officer had to give an opportunity for rectification of the particular condition that had been violated and no such opportunity had been given to the plaintiff Learned counsel submitted that this was a patent illegality for which the jurisdiction of this Court on the original side could be invoked and the plaintiff was not limited merely to pursuing statutory remedies as provided under the 1967 Act or otherwise.
8. Learned counsel further submitted that although ad interim status quo orders had been made on 3-2-2012, the defendants Nos.8 and 9 in violation of the same continued to raise construction on the property which led to the filing of an application for inspection which was allowed by order dated 22-2-2012. The Nazir (who was appointed as commissioner) filed his report dated 28-2-2012, and on 29-2-2012, when the matter was fixed in Court it was noted that that report showed that construction was rapidly being carried out on the property inspected by the Nazir. On that date the defendants Nos.8 and 9 appeared through duly instructed counsel and gave an undertaking that all construction activities being carried out would be ceased immediately and that nothing further would be done to disturb the .Possession, position or status quo in respect of the property. This is of course the undertaking of which the defendants Nos.8 and 9 seek discharge in terms of their application referred to above. At the same time the plaintiff contends that after the filing of the suit the plaintiff was forcibly dispossessed from the suit property or at least that portion thereof which is being claimed by the defendants Nos.8 and 9 and the application filed by the plaintiff seeking amendment of the plaint is to take into account these subsequent events. The plaintiff's case thus has two aspects. Firstly, the plaintiff challenges the Impugned Order (dated 22-4-2011) whereby the leasehold rights of the plaintiff in the suit property were terminated and the same was resumed by the Provincial Government. Secondly, the plaintiff's grievance is that the suit property, or at least a substantial portion thereof, has been wrongly allotted to the defendant No,7 who subsequently sold it to the defendants Nos.8 and 9, who not merely forcibly dispossessed the plaintiff from the same but were also carrying on construction activities thereon until they were restrained by the orders of the Court. Learned counsel submitted that the plaintiff had made out a clear case for- interim relief and also for the amendment of the plaint and that the defendants No,8 and 9 did not have any case for recall or discharge of the interim orders. Learned counsel submitted that all three ingredients for interim relief were to be found in favour of the plaintiff and prayed for relief accordingly.
9. Learned counsel for the defendant Nos.8 and 9 ("contesting defendants") strongly opposed the grant of any relief to the plaintiff. Learned counsel submitted that the contesting defendants had 99 years' leasehold rights in the property that they had acquired from the defendant No,7. He submitted that the entire transaction was lawful and proper. Learned counsel pointed out that admittedly the contesting defendants' property was only 4 acres, whereas the suit property being claimed by the plaintiff was five acres. Thus, there was a clear difference between the two properties. He further contended that the contesting defendants had constructed a boundary wall around their property and denied that the property being claimed by the plaintiff had any such wall around it. Learned counsel submitted that on the facts, the situation and property of the contesting defendants was different from that being claimed by the plaintiff. In any case, the leasehold rights of the plaintiff had been properly cancelled and the property resumed under section 24 of the 1912 Act and the plaintiff therefore had no claim, right or interest whatsoever. He submitted that the plaintiff was not entitled to any interim relief and prayed that the ad interim orders be recalled and undertaking given by the contesting defendants be discharged.
10. Learned A.A.-G. Also contested the grant of any relief to the plaintiff. He submitted that the Impugned Order had been lawfully and properly passed and if the plaintiff had any grievance, .He had adequate statutory remedies which could have been availed. He submitted that the jurisdiction of civil courts (and hence of this Court on the original side) was barred under section 36 of the 1912 Act.
11. All the learned counsel relied on certain case-law that will be considered below as and to the extent necessary and appropriate.
12. I have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. In the first instance something needs to be said about the 1912 Act. As originally enacted, it was a Punjab statute and applied only in that province. However, after the creation of West Pakistan, it was extended to all the areas of that province, which of course included the area that was, and eventually once again became, the Province of Sindh. It is in this manner that the 1912 Act came to apply in this province, and I am of course only concerned with it as so applicable. Now, as presently relevant, the 1912 Act has been amended thrice, once in 2005 and then in 2009 and 2010. The last two mentioned amendments were by Acts of the Sindh Assembly. The first mentioned amendments however were by means of an Ordinance (Sindh Ordinance XIII of 2005) titled the Colonization of Government Lands (Sindh Amendment)
Ordinance, 2005 ("2005 Ordinance"). These was promulgated on or about 8-11-2005 and fairly extensive amendments were made to the 1912 Act by this Ordinance. However, it appears that the '
Sindh Assembly did not enact any corresponding Act, with the result that when the 2005 Ordinance lapsed after the passage of 120 days the amendments made by it ceased to apply.
13. I now proceed to consider the plaintiff's case. As noted above, it has two aspects (see para 8 above). The first aspect is the plaintiff's submission that there has been a violation of section 24 of the 1912 Act (this was not affected by any of the amendments aforesaid). Section 24 provides as follows:--- "24. Power of imposing penalties for breaches of conditions.--- When the Collector is satisfied that tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objections---
(a) impose on the tenant a penalty not exceeding one hundred rupees; or
(b) order the resumption of the tenancy: ' Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice."
' As noted above, the plaintiff does not deny that there has been a violation of condition (4) of the ijazatnama, but it is argued that in terms of the proviso, the concerned officer ought to give an opportunity of rectifying the breach, which was not done. Hence, it is contended, the Impugned Order is unlawful. In support of his contentions, learned counsel for the plaintiff relied on Super Drive-in Ltd. v. Province of Sindh and others 2012 CLC 117 (SHC; DB) and Horticultural Society of Pakistan and another v. Province of Sindh and others 2005 CLC 1877 (SHC; DB). In the second mentioned case, it was held as follows:--- "Be that as it may it is clear from the terms of section 24 of the Colonization of Government Lands Act itself that the breach being capable of rectification, the Collector in the first instance was mandated to grant reasonable time to the petitioner to rectify the breach: In the event of petitioners' inability to' do so within aforesaid time he was required to independently apply his mind and decide either to impose a penalty or order resumption of tenancy. He failed to perform both the statutory obligations and proceeded to act under dictation from the Chief Minister. Even the elementary principles of natural justice were denied. Accordingly we are constrained to hold that the cancellation of lease was mala fide, void and inoperative." (pg. 1880)
' In view of the foregoing, it appears that there has clearly been a violation of the proviso in the facts and circumstances of the present case. Condition (4) of the ijazatnama required the lessee to establish a poultry farm on the suit property within a period of five years. Learned counsel for the plaintiff contended that the original lessee had in fact done so within the stipulated period, but could not continue the farm. If so, then in fact the condition was complied with, since it only required for the farm to be established. The powers under section 24 being expropriatory in nature are to be strictly construed. The breach of condition (4) would occur if the poultry farm was not established within the stipulated period; non-continuance of the farm would not, as such, be a breach of this condition. But even if the non-continuance were such a breach, it was on the face of it something that could be rectified. Thus, it was incumbent on the concerned authority to apply its mind to this aspect and as required by the proviso (which is mandatory in nature) grant an opportunity to the plaintiff to rectify the breach. However, this was not done at all. The concerned authority straightaway proceeded to resume the land. Prima facie, this was contrary to law and hence the Impugned Order suffered from a material illegality.
14, As noted above, learned A.A.-G. Contended that the proper remedy for the plaintiff was to challenge the impugned order before the revenue authorities and the jurisdiction of the civil courts was barred by reason of section 36. Learned counsel relied on a number of cases. Somewhat surprisingly, learned counsel referred to the well-known decision of the Supreme Court in Abbasia Cooperative Bank and another v. Hakeem Muhammad' Ghaus and others PLD 1997 SC 3. The Supreme Court held as follows with regard to the jurisdiction of civil courts (emphasis supplied): "It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order- or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court." (pg.
9)
' The foregoing observations would seem to go against the proposition advanced by learned A.A.- G. And in fact support the case sought to be made out by learned counsel for the plaintiff. Learned A.A.-G. Also relied on Imam Buksh v. Collector and others1982 SCMR 149. In this case, the appellant sought to argue that section 24 had been violated as no opportunity to rectify the breach had been given. However, the Supreme Court observed that, as a matter of fact, the record indicated that notice had been given in this regard. It was also observed that findings had been recorded that the appellant had been in default for "a long time" and that therefore at such a late stage, "the breach had become unrectifiable on his part" (p. 168). It is clear that the facts of the case before the Supreme Court were materially different from those at hand. Learned A.A.-G. Also relied on Pir Bux v. Muhammad Moosa and others SBLR 2007 Sindh 734 (SB). In this case, a civil suit had been filed (at ubaro) seeking to restrain the revenue authorities from disposing off certain land without determining the plaintiffs' claim. An application seeking rejection of the plaint was filed on the ground that the suit was barred by reason of section 36. The application was allowed but the plaintiffs' appeal succeeded before the concerned Additional District Judge. The defendant came in revision before this Court, which was allowed, the appellate order was set aside and the order rejecting the plaint was restored. It is clear from the decision that the impugned action of the revenue authorities was not under section 24 at all, but proceeded on facts and statutory provisions materially different from those involved in the present case. This case also does not ,therefore advance the objection taken by learned A.A.-G.
15. Learned counsel for the plaintiff on the other hand relied on Muhammad Nazir Khan v. Ahmad and others 2008 SCMR 521, Abdul Rab and others. v. Wali Muhammad and others 1980 SCMR 139, Usman Punjwani and another v. Government of Sindh and another 1996 CLC 31.1 (SHC; SB) and Raunaq Raza v. Province of Sindh and others 1994 CLC 317 (SHC; SB). If is to be noted that the two decisions of this Court were on applications for interim relief filed in suits on the original side. It was held that this Court had ample jurisdiction in a civil suit notwithstanding the provisions of section
36. Thus, in Usman Panjwani, it was observed as follows (pg. 314): "On the question whether this Court has jurisdiction, the law'is well-settled. It has been held in several reported cases that despite provisions of section 36 of the Colonization of Government Lands (Sindh) Act, 1912, the Civil Courts have jurisdiction to entertain a suit,, if the order passed by the Revenue Authorities is bad in law, without lawful authority and male fide."
' The following passage from Anjuman. Talim-Ul-Islam v. W.P. Punjab Province PLD 1983 Lahore 294, which was also in the context of section 36, was cited with approval: "Thus if it is shown that the order passed cannot be accommodated within the ambit of power of a particular authority, the Civil Court would intervene. Similarly, the Civil Court can intervene in case of fraudulent and male fide orders. In this view of the matter, jurisdiction of the Civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor male fides."
' In view of the foregoing, position, the objection that the jurisdiction of this Court is barred under section 36 and the only recourse of the plaintiff was to statutory remedies cannot be. Accepted.
16. It would thus appear that there has been a clear violation of the proviso to section 24 and a material illegality has been committed by the concerned authority in passing the impugned order.
The next point that needs consideration is the second aspect of the case, which relates to the claim, right and entitlement of the contesting defendants. Now, these defendants have, along with their application, filed a full set of the orders, leases, documents, etc. That they rely upon in this regard and this material makes for some rather interesting reading.
17. It appears that sometime on or about 30-9-2010, the defendant, No,7, acting as the representative of Messrs Chun Su Trading Company, applied to the Chief Minister seeking 10 acres of land Deh Dih, Korangi Town for purposes of setting up a salt refinery. The business entity, despite its foreign sounding name, appears actually to be a Pakistani concern. The revenue authorities were directed to report on the matter, and the concerned mukhtiarkar reported that no such area was available in Deh Dih. The defendant No, 7 then applied for 10 acres of land for the aforesaid purpose "in any other town like Kemari, Gadap or Bin Town on 99 years lease". It was on this second application that the Chief Minister, on or about 4-1-2011, made the order "examine and put up". As noted above, learned counsel for the plaintiff has challenged this direction as being without jurisdiction.
18. Grants of land under the 1912 Act are made, inter alia, in terms of a statement of conditions issued by the Provincial Government under section 10(2). As presently relevant, the Government, in exercise of such powers, issued (in supersession of all previous notifications) a statement of conditions for the grant of state land on or about 25-2-2006 ("the 2006 Conditions"). Paragraph 10 provides for the procedure for the grant of land, and sub-para (1) thereof states that "applications for grant of land shall be submitted to the. Chief Executive of the Province", i,e,, the Chief Minister.
Prima facie therefore, the Chief Minister had the jurisdiction to entertain defendant No, 7's application and make the order dated 4-1-2011.
19. Ai already noted above, on this order the revenue authorities reported that three pieces of land, totalling 10 acres, were available in Deh Moachko in Keamari Town in Na-class 92. It was directed that this land be allotted to the defendant No,7. On 6-8-2011, the Secretary to the Provincial Government in the Land Utilization Department made an order in terms of the 1912 Act, read with the 2006 Conditions issued thereunder, granting 10 acres of land in Deh Moachko, Keamari Town in Na-class 92 on 99 years' lease to the defendant No,7. It was expressly stated therein that the land was being granted for industrial purposes and would be used only for "the purpose for which applied and approved". It was also stated that if the lessee failed to use the land for the purpose for which it was allotted within a period of two years "the allotment of lease of the land shall automatically stand cancelled and the amount deposited shall stand forfeited". It was also stipulated that work had to commence within six months from the date of allotment. Finally, it was also provided that if "the land under allotment was not unallotted available State land or is subject of any decree or any restraining order of the Court, the grant shall be liable for resumption".
20. On the foregoing basis and with express reference to the aforesaid order, a registered lease deed was executed in favour of the defendant No,7 in respect of the 10 acres on or about 18-8-2011.
Almost -immediately thereafter, the defendant No,7 entered into a transaction with the defendant Nos.8 and 9 for the sale of 4 acres out of the total area of 10 acres. The registered sale-deed in this regard was executed on or about 24-9-2011. The defendants Nos.8 and 9 rely on the foregoing sequence of events and their registered sale-deed as the basis for their claim in opposition to the plaintiff. They also rely on a NOC granted in respect of the sale transaction issued by Deputy District Officer (Revenue), Keamari Town, and the concerned mukhtiarkar and supervising tapedar.
21. As noted above, the property being claimed by the defendants Nos.8 and 9 was inspected by the Nazir as commissioner. The Nazir reported that the property was surrounded by a boundary wall and in it construction was being carried out. Around 70 shops appeared to have been constructed though they were in an unfinished stage. Photographs were also taken by the Nazir and appended to the report. The defendant Nos. 8 and 9 filed objections to the Nazir's report. As presently relevant, it was averred that what were reported to be shops were 'actually godowns that were under construction.
22. It is on the basis of the foregoing material that the strength of the contesting defendants' claim as opposed to that of the plaintiff must be tested. The first point to note is that even on their own showing the contesting defendants' rights (if any) are subject to, and have been granted in terms of, the 2006 Conditions.. Now, these Conditions contain, in paragraph 2, an elaborate set of definitions. Industrial purpose is defined as the use of a plot of land as "(a) a cottage, small, medium and large industry or (b) an Industrial Estate or (c) an Information Technology Park or (d) tourism activities including hotels that offer lodgings". It will be recalled that the land was specifically applied for the setting up of a salt refinery and was allotted/leased for that purpose.
Prima facie therefore, any other use of the land is contrary to the conditions on which it has been granted. The use to which the contesting defendants appear to be putting the land is clearly not industrial use and therefore the construction activities being carried out thereon are prima facie contrary to law. It is also to be noted that by the 2009 amendments, a new subsection (5) was added to section 10 of the 1912 Act, which provided in material part as follows:-- "(5) If a person who has been granted, allotted or leased out, land after applicability of this Act to the Province of Sindh, or a person who may be granted land under this Act hereinafter for specific purpose has---
(b) failed to use the land for the purpose for which it was granted or allotted or converted or leased out and the period of two years from the date of grant, allotment, conversion or lease has expired, the grant, allotment, conversion or lease of the land shall automatically stand cancelled and the amount deposited shall stand forfeited...."
' Prima facie' therefore, there are serious questions as to whether the contesting defendants are entitled to carry on with their construction and other activities on the property being claimed by them. Certainly, it would seem that the actual industrial purpose for which the land was allotted/leased, i,e,, setting up of a salt refinery, has been entirely put to one side. Prima facie, this is contrary to law.
' The undue haste with which the defendant No,7 disposed off a major portion (40%) of the land allotted for the salt refinery cannot also be ignored. It is also to be noted that in fact, the defendant No,7 was ostensibly acting as representative of a business concern and not in her individual capacity. This aspect of the matter has also been conveniently ignored or suppressed. It is also not clear whether the officers who granted the NOC for the sale of the 4 acres to the defendant Nos.8 and 9 were duly empowered to do so. Even if they were, it is obvious that the grant of such an NOC was a discretionary power, It is an open question whether the exercise of the discretionary power was appropriate, lawful or proper in the facts and circumstances of the present case. Even the terms of the NOC give cause for pause and doubt. It is issued at the defendant No,7's "own risk and responsibility, if the same is free from all encumbrances, litigations and other legal hitch on the same terms and conditions". This is hardly the terms on which an NOC can or ought to be issued. In my view, all of these factors create serious doubts and misgivings and the bona fides and validity of the claim being put forward by the contesting defendants is something that appears, prima facie, to fall short of the required standard of legal propriety.
22. Finally, the record does not at all clearly establish that the property obtained by the contesting defendants in the manner described above is not or could not at all be the suit property, i,e,, as is being claimed by the plaintiff. It will be recalled that the revenue authorities reported that there was no single contiguous piece of 10 acres even in Deh Moachko, but the land was in three pieces.
(That in such a situation, the allotment/lease for the ostensible industrial purpose of setting up a salt refinery nonetheless went ahead is itself cause for serious concern.) At around the same time, the five acres leased to the plaintiff had purportedly been resumed. In such circumstances, the possibility cannot at all be ruled out that there is at least some overlap, and perhaps a substantial one, between the land being claimed by the plaintiff and that being claimed by the contesting defendants.
24. (?)The foregoing discussion can be summed up as follows. Prima faice, the Impugned Order whereby the plaintiff's land was resumed is tainted by a material illegality and there has been a complete violation of the proviso to section 24. At the same time, the manner in which the defendant Nos.8 and 9 acquired the land being claimed by them (and the haste with which the transaction took place), and the use to which they are putting that land is also open to serious question and doubt. There appears at least to be an appearance of impropriety and illegality in the entire transaction and it appears that. The relevant provisions of the 1912 Act and the 2006 Conditions have been flouted. All of this emerges from the documents and record relied upon by the defendant Nos.8 and 9 themselves. Finally, there is a distinct possibility that the suit property overlaps at least in substantial part with the viand being claimed by the defendant Nos.8 and 9.,
25. By reason of the foregoing, I am of the view that the plaintiff has made out a case for interim relief. He has been unlawfully denied the land to which he is entitled by way of leasehold rights.
That land may well be in the hands of other persons, who are putting it to use that may render it unusable for the plaintiff and may in any case be contrary to law. In these circumstances, the plaintiff has made out a prima facie case. The balance of convenience lies in his favour and against the defendant Nos. '8 and 9. He will suffer irreparable loss and injury if interim relief is not granted.
26. Before concluding, I would emphasize that the foregoing observations are tentative in nature and only for purposes of the present order. The suit will of course be tried and decided strictly on its own merits and on the basis of the evidence led by the parties.
27. I accordingly hereby direct and order as follows:--
(a) C.M.A. 755 of 2012 and C.M.A. 1850 of 2012 are allowed in terms that the status quo order made on 3-2-2012 and the undertaking given by the defendant Nos.8 and 9 on 29-2-2012 are confirmed and the parties are put on notice that, any violation of the same will result in the immediate attachment of the property.
(b) C.M.A. 2078 of 2012 is dismissed.
(c) C.M.A. 1851 of 2012 is allowed. Amended plaint within three weeks and amended written statement within five weeks of receipt of.