This civil revision, filed under section 115, C.P.C., is directed against the judgment, dated 3rd September, 1992, passed by the learned District Judge, Karachi (East) in Civil Miscellaneous Appeal No,15 of 1992, whereby applicant's appeal was dismissed and the order of the learned trial Court, through which the interim injunction granted against the applicant, was confirmed. This revision is against the concurrent findings of the two Courts below.
2. Before hearing the learned counsel for the parties on merits of the case, Mr. Khalilur Rehman, for the applicant, has invited my attention to the two legal preliminary objections, which were raised earlier and are incorporated in this Court orders, dated 16th September, 1993 and 23rd September, 1993, which, for the sake of advantage, are reproduced hereinafter: "16-9-1993. I have heard the arguments of Mr. Khalilur Rehman, Advocate for the applicant and Mr. Akhlaque A. Siddiqui, Advocate for the respondent No, 1 . Mr. Khalilur Rehman, Advocate for the applicant has raised the question of maintainability of the suit filed by the Pakistan Railways' in its own name through the 'Divisional Land Management Officer, Karachi Division'. Mr. Khalilur Rehman, learned Advocate for the applicant has submitted that 'Pakistan Railways' is a department under the Ministry of Communications as such under section 79, C.P.C. Pakistan Railways cannot file the suit in its own name and the suit can be filed in the name of 'Pakistan' through Secretary concerned.
It has also to be considered as to whether in the facts and circumstances of this case Article 184 of the Constitution will be attracted or not? Mr. Akhlaque Ahmed Siddiqui, Advocate for the respondent No,1 had taken time for making submissions on these points but he is not in a position to assist the Court properly. In the circumstances, let notices be issued to the Advocate-General Sindh and Deputy Attorney-General for Pakistan for addressing the Court on these questions. By consent the case is adjourned to 23-9-1993.
(Sd.)
Judge"
"23-9-1993 Mr. Ikram Ahmed Ansari, D.A.-G. and Mr. K.M. Nadeem, A.A.-G. are present on Court notice and have submitted that Pakistan Railways is a department of Federal Government of Pakistan, under the Mijurity of Communications and as such under Article 174 of the Constitution and section 79, C.P.C. a suit on behalf of Pakistan railways can be filed only in the name of Pakistan Railways itself, Mr. K.M. Nadeem, A.A.-G. has further submitted that in view of the fact that in this suit Government of Sindh has also been joined as a defendant the question of applicability of Article 184 of the Constitution will have to be considered. Mr. Akhlaque Ahmed Siddiqui, Advocate for Pakistan Railways is not in a position to make any submissions on this question. In the circumstances he is directed to file the written notes of arguments within two days and the case is adjourned to 27-9-1993 when the Divisional Superintendent, Pakistan Railways, Karachi, is also directed to be present in Court.
(Sd.)
Judge"
3. On last three occasions, it was directed by this Court that the notice be issued to the Deputy Attorney-General at Karachi and to the Advocate-General, Sindh and on all such, occasions these notices were issued and were duly served. Even on the last date of hearing as a matter of abundant caution I again ordered for repeating notices to D.A.-G. and to Advocate-General, Sindh, who were duly served but since morning nobody has appeared on their behalf. In such circumstances I was left with no alternate but to hear other counsel present and that too after waiting till 12-00 noon,. In support of his submissions Mr. Khalilur Rehman, for the applicant, has repeated the same arguments as reproduced in the above two orders and has stated that since the suit was filed not in the name of Federation of Pakistan and not by the General Manager, Pakistan Railways as such it was an incompetent suit and the plaint was liable to be rejected. He has further referred to the plaint in Suit No, 525 of 1991 Pakistan Railways v. Government of Sindh and another and argued that nowhere in this plaint it is disclosed that the person who has filed suit was competent and authorised by the Government of Pakistan to file and prosecute the same. On the question from the Court as to whether any such plea was raised before any of the two Courts below, Mr. Khalilur Rehman has referred to his memo of appeal filed before the First Appellate Court where the applicant has raised the following legal objection:--- "(2) That under the law only the General Manager, Pakistan Railways is competent to sue on behalf of Pakistan Railways and, thus, the suit, as filed by the Divisional Land Management Officer was incompetent and bad in law and no cognizance could be taken by the learned Civil Judge."
4. Mr. Akhlaque Ahmed Siddiqui, learned counsel appearing for the respondent No,1, argued that the General Manager of Pakistan Railways had authorised Divisional Land Management Officer to file and prosecute the present suit and that the General Manager was competent to delegate such power. He has also argued that this civil revision is not maintainable as no illegality is pointed out in the concurrent findings. He has also filed his written arguments which, according to him, was filed in the month of September, 1993 but since the same was not available on the case file he has again filed a photo-copy of the same, which may be kept on record.
5. Pakistan Railways was established and is now being run under the provisions of the Railways Act, 1890. There are several provisions in this Act which show that for all intent and purposes the Pakistan Railways is being managed, administered and controlled by the Federal Government of Pakistan. Section 139 of the Act, 1890 provides that for the purposes of Chapter IX of the Pakistan Penal Code its employees are to be treated as public servant within the meaning of section 21, P.P.C. However, this act is silent on the question as to who is competent to file, maintain and to prosecute a civil suit, filed on behalf of Pakistan Railways.
6. In order to determine whether the Pakistan Railways is a Federal Government and whether Karachi Development Authority is a Provincial Government, there is only admission made by the learned D.A.-G. and A.A.- G., Sindh as reflected in the orders reproduced herein above. If it is so, then the jurisdiction lies with the Honourable Supreme Court and this Court has no jurisdiction. In Pakistan through The Secretary Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 a suit was filed on the original side of the Supreme Court by the Government of Pakistan against the province of West Pakistan under Article 156 of the Constitution of 1956 for seeking a declaration to the effect that the Cantonment Board and the lands in the cantonment vested in the Government of Pakistan were not liable to pay any tax under the West Pakistan Urban Immovable Property Tax Act, 1958. That suit was filed by the Government of Pakistan on behalf of Cantonment Board in which an objection was raised on behalf of the Provincial Government that the Cantonment Board like any other municipal authority are independent, corporate, statutory bodies having the power to impose taxes and cannot be equated with the Central Government. The Honourable Supreme Court examined various provisions of Cantonment Act, 1924 and held inter alia, that all the lands situated within the limits of cantonment areas does not vest in the Central Government (page 44). The provisions of Municipal Administration Ordinance X of 1960 were compared with the provisions of Cantonment Act, 1924 and it was further held that there is no material difference between the Cantonment Board and other Municipal Authorities but lands and buildings vested in the Municipal Authority do not vest in the Provincial Government.
7. In this connection it would not be out of place to refer the case of the Punjab Province v. The Federation of Pakistan PLD 1956 FC 72 in which suit was filed before the Federal Court by the Punjab Provincial Government where the question involved was whether the Punjab Government was liable to pay income tax and also liable to pay excess profit tax for the profits of a business earned outside the province. It would be pertinent to mention here that Article 204 of the Government of India Act, 1935 is paramateria to Article 184(1) and (2) of the Constitution of the Islamic Republic of Pakistan, 1973, which are reproduced as follows:-- "Article 204.-- Subject to the provisions of this Act, the Federal Court shall to the exclusion of any of the Court, have an original jurisdiction in any dispute between any of the following parties, that is to say, the Federation, or any of the Provinces, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends."
"Article 184(1) and (2).
184(1).-- The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.-- In this clause, 'Governments' means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
(3) ...........................
8. In the case of Punjab Province (supra) following three conditions were laid down for the purpose of invoking original jurisdiction of the then Federal Court:-- "(1) that there should exist a dispute between the Federation or any province or between the Provinces themselves;
(2) the dispute should involve a question on which the existence or extent of a legal right depends; and
(3) there must not be any repugnant provision in the Act."
9. From the perusal of the plaint it is established that the present suit was filed by the Pakistan Railways on behalf of the Government of Pakistan through Divisional Land Management. This suit was filed against Government of Sindh as defendant No,1 and against Karachi Development Authority as defendant No,2, seeking declaration that auction of land in Block 4/A Gulshan-e-Iqbal, Scheme 24, Karachi, be declared illegal and without lawful authority and that the defendants be restrained from giving any legal effect to the auction held on 8th/9th April, 1991. It is an admitted position that the defendant No,1 is a Provincial Government. As far as defendant No,2 K.D.A. is concerned, it was established under President's Order 5 of 1957. According to section 3 the then Central Government was authorised to establish as authority for the purpose of Order 5 of 1957.
However, through subsequent amendments i,e, President's Order 6 of 1962, the words "Central Government" occurring in Articles 1, 3, 8, 20, 87, 98, 104, 117 and 120 were replaced by the words "Provincial Government" therefore, now the controlling authority is the Provincial Government. It is further provided in Article 4 of the K.D.A. Order that its management would be run by a governing body, which shall consist of the Commissioner, Karachi Division, as Director and seven (7) other Members, all to be appointed by the Provincial Government. What to say more is that Article 148 authorises the Provincial Government to dissolve K.D.A. and to transfer its assets and liabilities; therefore, for all legal intent and purpose, it can be safely said that K.D.A. is part of the Provincial Government. In so far as Paksitan railways is concerned, it was established through Railway Act, 1890 and for the facts discussed above, it is being controlled, managed and run by the Federal Government through a full-fledged Ministry.
I would also like to rely on the observations of Justice (Retd) A.R. Cornelius (as his Lordship then was) in the famous case of Tariq Transport Company, Lahore v. Sargodha-Bhera Bus Service and 2 others PLD 1958 SC (Pak 437 at 496) where, the practice of bringing private disputes of public officials before the Courts was deprecated in the following manner:-- "It seems necessary to observe that if within a certain department, one authority has reasons to be displeased or dissatisfied with the working of another authority, it is surely unnecessary, and is completely inconsistent with the maintenance of autonomy within that department, to present those disputes for resolution by a Court. It is not an elevating spectacle to find, as we saw in the present case, the Secretary of the R.T.A. asking the Court to settle what powers the Provincial Transport Authority could exercise over the R.T.A. surely there are sufficient wise and sober minds within the branch of the administration which deals with the control of public transport to be able to devise, consistently with the statutory instruments, a modus vivendi whereby these two authorities may be enabled to function together harmoniously, and with the degree of efficiency necessary to ensure the public good. If on the one hand it is necessary to advise the judiciary not to exceed their proper bounds in dealing with matters lying in the executive sphere, it seems necessary also to advise officials who are required to discharge executive functions to avoid regarding each other in the light of potential litigants before a Court, even it be the High Court. It was stated before us that the origin of the whole disagreement these two Transport Authorities is something in the nature of a private quarrel between their respective Chairman, who are both officials. The matter was not pursued further in this Court, and one may express the hope that the supposition has no element of truth in it. For, it would indeed be a sad day when owning to private grudges public officials are permitted to think of utilizing a very special jurisdiction vested in the High Court, to carry on their private conflicts with the aid of such forms of Jaw as they find applicable to their respective functions."
In view of the fact that initially the suit was filed by the Pakistan Railways on behalf of Federal Government showing Government of Sindh as defendant No,2 and in view of the fact that the K.D.A. is also part of the Provincial Government, in my tentative view this suit may be termed to be a suit between Federal Government and Provincial Government. It is yet to be determined whether under Article 184(1) and (2) of the Constitution, the jurisdiction of Civil Courts or for that matter any other Court is excluded or not.
As a result of the above discussion, I am of the considered view that the plaintiff/respondent failed to prove presence of all the three ingredients for grant of stay. Consequently, this revision must succeed. Both the orders of subordinate Courts are set aside.