' This is an application filed by the plaintiffs under Order 39, Rules 1 and 2, C.P.C. Read with section 151, C.P.C. Praying for temporary injunction against the defendants restraining them from interfering with the allotment and possession of the plaintiffs in respect of plot of land bearing No, 18, situated in K.28, Trans Lyari Quarters, Hawksbey Road, Karachi West. The plaintiffs have filed this suit for declaration and perpetual injunction against the defendants for a declaration that the order dated 24-3-1994 passed by the Government of Sindh, whereby the plot in question was cancelled be declared unlawful and of no legal effect.
2. The plot in question bearing No, 18 (Industrial) out of K-28 Trans Lyari Quarters situated on left side of Main Hawksbay Road adjacent to K.M.C. Truck Stand, Karachi West measuring 4 acres was allotted to the plaintiffs' predecessor-in-interest on 27-1-1992 by the defendant No,1, hereinafter referred to as the plot in question. It is the case of the plaintiffs that the said allotment was made with the approval of the then Chief Minister and was for 99 years' lease. The plaintiff has filed Annexures "P/1 to P/4" in support of this contention. This plot was purchased by the plaintiffs which was lawfully transferred in his name. Lease for 99 years was executed by the Mukhtiarkar, Karachi West on 12-3-1992 in favour of the predecessor-ininterest of the plaintiffs. The amount of entire sale consideration was paid. The case of the plaintiff is that he was fully abiding the terms and condition; of the lease agreement (Annexure-P/8 to the plaint) and that without any reason and out of mala fides the defendant No,1 on 24-3-1994 cancelled the plot in question and directed the concerned department to reverse the entries made in the records of right and to take over physical possession of the land in suit at once. On the other hand, the case of the defendants is that the plot in question was allotted to the predecessor-in-interest of the plaintiff out of political consideration, and at a very low price thus causing huge losses to the Government of Sindh. It is also argued by the learned Advocate-General, Sindh that in view of section 36 of the Colonization of Government Lands Act, 1912 this Court has no jurisdiction.
3. I have heard Mr. Mushtaq Memon, Advocate for the plaintiffs and Mr. Abdul Ghafoor Mangi, A.-G.
Sindh for the defendants.
4. Mr. Mushtaq Memon, Advocate for the plaintiffs has strenuously argued that the impugned letter/order dated 24-3-1994 has been passed in violation of the principle of natural justice inasmuch as no prior show-cause notice was issued to the plaintiff before issuing the cancellation letter of the plot in question. It is further argued that the order of cancellation is based on mala fides. That the order of cancellation failed to disclose in its contents as to which condition, law or rule was violated while granting the plot in question to the predecessor-in-interest of the plaintiffs.
Mr. Memon has urged that by execution of 99 years' leasehold rights in favour of the plaintiffs predecessors a vested right was created which cannot be recalled or withdrawn by the defendants without first affording an opportunity to show cause and that without seeking resort from Civil Court. Mr. Abdul Ghafoor Mangi, the learned Advocate-General, Sindh appearing for the defendants has supported the action as contemplated in the letter dated 24-3-1994 issued by the Land Utilization Department on behalf of Government of Sindh through which plot in question was cancelled. According to the learned Advocate-General, the plot in question was allotted in violation of the statement of conditions, dated 12th May, 1975 as well as in violation of Article 28 of the Rules of Business. Learned A.-G., Sindh has also raised objection as to the jurisdiction of this Court. He has relied upon section 36 of the Colonization of Government Lands (Sindh) Act, 1912, which is reproduced as hereunder:-- "36. Jurisdiction of Civil Court barred as regards matter arising under the Act.--A Civil Court shall not have jurisdiction in a matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the. Provincial Government, Board of Revenue, or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act."
5. 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 mala fide. For reference, see the cases of Secretary of State v. Mast & Co. (AIR 1940 PC 105), Messrs Chalna Fibre Company Ltd., Khulna and others v. Abdul Jabbar and others (PLD 1968 SC 381), Karim Dad v. Arif Ali and another (PLD 1978 Lahore 679), Anjuman Talim-Ul-Islam v. W.P. Punjab Province (PLD 1983 Lahore 294), Muhammad Saleh v. Meher Shah (1980 CLC 662) and Syed Raunaq Raza v. Province of Sindh and others (1994 CLC 317). In the case of Mast & Co , it was held by their lordships of Privy Council that: ".. It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure...."
' In the case of Messrs. Chalna Fibre Company (supra), the Hon'ble Supreme Court did not uphold the objection that the suit was not maintainable. It was further held that the ouster of the jurisdiction of Civil Courts is not to be readily inferred unless that jurisdiction has been either expressly or impliedly taken away by some law. Following is the relevant portion:-- ". It is a well-settled rule that the ouster of jurisdiction of a Civil Court in respect of a civil suit is not to be readily inferred. Unless that jurisdiction has been either expressly or impliedly taken away by some other law it will continue to vest in the Civil Court"
7. The issue concerning Civil Courts' jurisdiction as contemplated in section 36 of the Act, 1912 also came up before a Division Bench of the Lahore High Court in the case of Anjuman-e-Talimul Islam where it was held: 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 mala fides...."
' The same view was upheld by a learned Single Judge of this Court Mr. Mukhtar Ahmed Junejo, J.
(as his lordship then was) in the case of Syed Raunaq Raza (supra). In this reported case, interpretation of section 36 of the Act 1912 was also involved. It was held that the Cirl Court has jurisdiction to examine such cases, to be satisfied if the executive functionaries have exercised their powers in accordance with law and have followed the statutory obligations as well as the principles of natural justice. In the case of Muhammad Iqbal Piracha v. Government of Sindh and others (Suit No, 500 of 1994), I have followed the same view and overruled the objection of the learned A.A.-G. Sindh that this Court has no jurisdiction in view of section 36. I have examined the facts of this suit as well as Suit No, 500 of 1994 which are very similar. Therefore, the point of law as upheld by me in the case of Muhammad Iqbal Piracha (Suit No, 500/94) is binding on me in this subsequent suit. In the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), it was herd by the Hon'ble Supreme Court that the previous decision on a specific point of law is to be accepted as binding by a Single Judge in a subsequent proceedings. In view of this settled law, I hereby overrule the objection raised by the Advocate-General, Sindh as to the jurisdiction of this Court.
8. It is not the case of any of the parties that the plaintiff is not in physical possession of the plot in question. The defendants have not filed any counter-affidavit to this application. However, they have filed written statement wherein they have not mentioned the exact rule or regulation which was violated at the time of grant of plot in question. It is the case of the defendants that the sale price fixed at that time was very low and that at the time of grant the cost of land were more than two million rupees. It is further disclosed in the written statement that the grant of plot in question is "political favourtism which has caused heavy loss to the Government "
9. There is no cavil to the proposition of law that any order passed in violation of principles of natural justice is not sustainable in law.,The learned A.-G., Sindh was not able to meet this well- settled principle of law. For any reference, see Dacca University v. Zakir Hussain (PLD 1965 SC 90), Noor Muhammad v. K.DA. And others (PLD 1975 Karachi 373), Ghulam Fatima v. Board of Revenue (PLD 1994 Lahore 296), Akber Waheen v. K.DA. (1993 MLD 87) and P.MA., Karachi v. Government of Sindh and Others (1979 CLC 382). It is an admitted position that the plot in question which was earlier allotted and leased in favour of Nizamuddin and subsequently transferred to the plaintiff No,1 was cancelled without affording an opportunity to show cause. Plaintiffs have been condemned unheard. Several questions of law as well as of facts are involved in this suit. The plaintiffs have raised serious objections as to the authority of defendants to cancel/withdraw the plot in question, particularly, in violation of the principles of natural justice. These issues require full- fledged trial.
10. I have considered arguments of the learned counsel as well as the facts of the case and the law cited at Bar. I am of the considered view that the plaintiffs have made out a prima facie case and that the balance of convenience is in the favour of grant of this injunction application. I am also of the view that in such circumstances, if interim order of injunction is not granted, the plaintiff will suffer irreparable loss and injury. This application must succeed which is accordingly granted. The defendants are restrained till disposal of this suit from interfering in any manner, with the allotment and possession of the plaintiffs in respect of the plot bearing No,18, situated in K-28, Trans Lyari Quarters, Hawksbay Road, Karachi West measuring 4 acres. C.MA. No,1645 of 1994 stands disposed of.