1. ' SYED KHURSHEED HAIDER RIZVI, J.---This appeal is directed against the order dated 31-5-1988 by the learned Single Judge of this Court on the Injunction Application filed by the appellants in Suit No, 421/87 against the respondent.
2. ' The case of the appellants is that they are the exclusive owners of the Qubooli lands bearing survey numbers 763 to 847 and 849 to 988 measuring in all about 774 acres situated in Chak No,3, Deh Kaloo Kohar, Tapo Kaloo Kohar, Taluka Thana Bela Khan, District Dadu which they had purchased from Malik Mula Khan vide registered sale-deed dated 10-2-1985. The said lands were unsurveyed and subsequently they were got surveyed and the appellants got authenticated extract (Soorathal). On 1-5-1984, respondent No,1 allegedly, trespassed into the said lands without lawful authority and upon enquiry the appellants were informed by respondent No,1 that the land had been acquired. The appellants could not find any trace of official proceedings showing that the lands had been acquired by respondent No,1. However, the appellants came to know that respondent No,2, vide notification dated 12-4-1983, had ordered the constitution of a Government financed Industrial Estate and for that purpose respondent No,2 had reserved areas described in the Schedule appended to the said Notification. This notification specifically excluded the Kabuli lands from the proposed Industrial Estate. On 24-9-1984, in supersession of the earlier notification dated 12-4-1983, the respondent No,2 issued another notification whereby respondent No,2 had reserved more areas described in the Schedule appended thereto, and were to constitute an Industrial Estate including Kabuli lands. It is alleged that without complying with the provisions of the Land Acquisition Act, the respondents cannot acquire the property rights of the appellants over the said lands. On 26-121985, the appellants made a representation to the Deputy Commissioner, Dadu requesting him to either direct respondent No,1 to make payment to the appellants as compensation for the acquisition of lands of the appellants at the prevailing market value or in the alternative, to put the appellants back in possession of the said lands. However, the Deputy Commissioner called for report from Mukhtiarkar and in the result he asked respondent No,1 to pay the compensation for the lands in their possession but respondent No,1 did not comply with the order. On 28-10-1986, the appellants served respondent No,1 with legal notice calling upom him to hand over the physical vacant possession of the said lands but respondent No,1, through his letter, though did not claw the appellants' title over the said lands, but disputed the location of the said lands under their possession. On the refusal of respondent No,1 to deliver possession of the said lands to the appellants, the appellants filed the above described suit for injunction, recovery of possession and in the alternative recovery of compensation before this Court. Alongwith the suit an application under Order 39, Rules 1 and 2, C.P.C. Was also filed.
3. ' Respondent No,1 denied the case of the appellants. It is stated that the suit is not maintainable inasmuch as the prayer for relief of possession has not been made. It is also denied that the appellants are the owners of the suit land or the respondent No,1 had trespassed over it. It was also submitted that the suit land had been granted to respondent No,1 by the Government of Sindh. It was also stated that the appellants had no title over the said lands and that they have managed and manipulated to forge the documents with the collusion of Revenue Staff of the Deputy Commissioner and Mukhtiarkar and by forgery they have got possession over the said lands. It is also the case of respondent No,1 that over the said land there is a project of International dimensions where 48 factories are already under production and 66 are nearing completion.
4. ' We have heard counsel for the parties and have also examined the relevant record.
5. ' There is no doubt that the learned Single Judge has come to the conclusion that the appellants seem to have a prima facie case. He, however, declined to grant the injunction to the appellants on the ground that the balance of convenience lies in favour of respondent No,1 and that the appellants are also interested in payment of compensation rather than keeping the possession with them. Learned Single Judge also found that respondent No,1 are engaged in the work of public utility and industrial development of the country and that grant of injunction would cause greater injury to. Respondent No,1 than what would be sustained by the appellants if injunction is refused.
6. ' Learned counsel for the appellants has contended that the learned Single Judge had no justification in refusing the grant of injunction after he had concluded that the appellants have a prima facie case. He also contended that the mere fact that the appellants asked for compensation would not disentitle them from claiming injunction particularly when the respondent No,2 have totally failed to pay the compensation.
7. ' The contention of the learned counsel that merely on the ground that they had asked for the compensation, they cannot be disentitled from the right which might have accrued to them in the capacity of owners especially where the facts and circumstances of this case show that respondent No,1 had not paid the compensation so far, has got force. Learned counsel for the appellants submitted that it is also not known that what public work is in progress and further that even if the work of public importance is in progress, the respondents cannot grab the lands of the appellants without complying with the legal formalities. He placed reliance on the cases reported as 1986 CLC 436, PLD 1975 Lahore 492, PLD 1982 Lahore 558, PLD 1956 Lahore 893 and PLD 1985 Karachi 44.
8. ' On the other hand, learned counsel for the respondent No,1 has submitted that the claim of the appellants that they are the owners of the abovementioned lands is based on forgery. At this stage this contention cannot be considered as it would require recording of evidence which can be done only by the trial Court.
9. ' The next contention of the respondents' counsel is that according to the principles of acquiescence the respondent can acquire the lands in question and that the appellants have no right for injunction which he has prayed. This contention is not acceptable because the appellants, had taken steps required under the law for getting the possession of the land and had duly intimated the respondents that they had no right over the land and had also asked the competent authorities for payment of compensation.
10. ' Learned counsel for the respondent No,1 also submitted that public project cannot be stopped by an injunction. In support of his contentions he referred several authorities. It is true that public project cannot be stopped by injunction but it does not mean that public project can be carried out at any land without first adopting the legal procedure under the Land Acquisition Act or under any other law. In this matter there is no material to indicate that the abovementioned lands had been acquired in accordance with the law and as such, respondent No,1 cannot apparently, claim his legal title over the lands in question and thus, he had no right to begin the development work for any public project there.
11. ' In the case reported as Chairman, Municipal Committee, Tamila v. Muhammad Jan and 4 others (1987 CLC 2416) it was held as under.-- "Although the first obligation of a person desirous of having a temporary injunction issued in his favour is to make out a prima fade case, in absence whereof a Court cannot be deemed possessed of the power to issue it, yet, as has been held in Marghub Siddiqi v. Hamid Ahmed.Khan and 2 others (1974 SCMR 519), even in those cases in which such a case is made out the applicant does not become entitled to the grant of a temporary injunction as a matter of mere course and the Court has to attend also to the other two considerations relating to irreparable loss and balance of convenience before issuing a temporary injunction."
12. ' In another case reported as Akhlaq Ahmed v. Karachi Port Trust and another (1980 CLC 1873) it has been held as under:-- "Another reason for withholding injunction as regards the aforesaid 170 square yards is the fact that public works of great importance and utility would seem to be interfered with if injunction is issued as regards the said area. Balance of convenience, therefore, lies against the grant of injunction in respect of the aforesaid area."
13. ' Lastly in the case reported as Avari Hotels Ltd. v. Hilton International Company (PLD 1985 Karachi 445) it was held as follows: "One of the dominant considerations in the grant of injunction in matters relating to possession and control of a premises, or, business undertakings is balance of convenience. It is consistent law that persons in possession, if such possession is legally obtained, or obtained by consent, are not to be lightly divested of their possession. The second dominant consideration in cases of this nature would be to evolve a method, whereby the rights of parties are protected pendente lite."
14. ' However, taking into consideration the abovementioned authorities and the facts and circumstances of this case, we are of the view that the work of the project which had been carried out on the land in question cannot be disturbed as it will cause greater inconvenience to respondent No,1 and that the appellants can be compensated as prayed by them for the same but we grant injunction in respect of the land which has not been utilised so far and is not immediately in use.
15. ' To the above extent we accept the appeal and set aside the impugned order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.