S.A. RABBANI, J.--- C.M.A. No. 4430 of 2001 is an application under Order XXXIX, Rule 4, C.P.C. Seeking modification, in order passed on 12.7.2001, by way of a direction to the builder to immediately provide necessary structural shoring to retain the soil around the excavations at the Site and prevent its collapse.
2. C.M.A. No. 3934 of 2001 is an application under Order XXXIX, Rules 1 and 2, Civil Procedure Code for an interim injunction to restrain the private respondents from raising further construction, transferring, selling or parting with possession, and to restrain official respondents from issuing any certificate or permission in this respect.
3. C.M.A. No. 3935 of 2001 is an application under Order XVIII, Rule 18, Civil Procedure Code for inspection of the plot in dispute for ascertaining facts about the construction.
4. All these applications have been filed on behalf of the petitioners. Invoking jurisdiction under Article 199 of the Constitution, the petitioners filed this petition to prevent ongoing construction on plot No. ST H-1/A, Block 8, Clifton, in the public interest, alleging that' it is in violation of law. The petition has already been admitted for regular hearing vide order dated 12.7.2001.
5. Mr. Naeemur Rehman, learned counsel for the petitioner submitted very lengthy arguments and cited a number of authorities, but most of them related to maintainability of the petition, being one in public interest, alleged violations of law by the construction and factual aspect of the matter. It can be seen that the same arguments were advanced at the admission stage on which the petition was mentioned on 12.7.2001. There is every likelihood that same arguments and case-law shall be repeated at the regular hearing stage.
6. In substance, the question before us was whether the petitioners are entitled to an interim injunction, as prayed, under Order XXXIX, Rules 1 and 2, Civil Procedure Code.
7. The petitioners have themselves chosen to invoke jurisdiction under Article 199 of the Constitution and have filed this petition under it. This Article itself envisages jurisdiction to make an interim order, as can be easily inferred form clauses (4) and (4A) of the Article. It is neither necessary nor permissible to resort to rules 1 and 2 of Order XXXIX, Civil Procedure Code for the purpose, which are basically meant for civil suits as mentioned in these rules themselves. Provisions of clause (4A) of Article 199 of the Constitution and rule 4-A of Order XXXIX, Civil Procedure Code may be examined for a clarification.
8. If an interim stay is ordered under Order XXXIX, Rules 1 and 2, Civil Procedure Code, Rule 4-A of the said order applies, and not clause (4A) of Article 199 of the Constitution. In case such interim orders were to be made, in the Constitution petitions, under Order XXXIX, Rules 1 and 2, Civil Procedure Code, there was no necessity to insert clause (4A) in Article 199, as rule 4-A was there in Order XXXIX, Civil Procedure Code for the purpose. Existence of clause (4A) in Article 199 unambiguously establishes that interim orders in the Constitution petitions are to be made in exercise of the powers and jurisdiction given by the same Article and not under Order XXXIX, Rules 1 and 2, Civil Procedure Code.
9. Thus the prayer of the petitioners for interim injunction is to be examined with reference to Article 199 of. The Constitution. Reproduction of Article 199 (1) may facilitate the examination. It is as given below:- "199(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) On the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation of Province or a local authority, to refrain from doing any thing he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority' has been done or taken without lawful authority and is of no legal affect; or
(b) (c) on the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government, exercising any power or performing any functions in, or in relation to, any territory within the jurisdiction of that Court, as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part IL"
It can be seen that the persons to 'whom a direction can be issued or whose action or order can be declared unlawful and of no legal effect include only the persons "performing functions in connection with the affairs of Federation, a Province or a local authority". This obviously excludes persons not performing such functions. This category of the persons, to whom directions or orders can be issued in exercise of this Constitutional provision, has further been squeezed by the exclusions mentioned in the definition of ' person' given in clause (5) of Article 199. A person not performing functions in connection with the affairs of Federation, a Province or a local authority is not, thus, subject of this Constitutional provision and no direction to or order against, him can be made in a Constitution petition.
10. On an observation about this legal position, Mr. Naeemur Rehman referred to the words "any person" in paragraph (c) of Article 199(1). It can be easily seen that these two words are part of the phrase "any person or authority, including any Government, exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court...." This is also in line with sub-paras (i) and (ii) of para (a) in clause (1) of Article 199. This is to be read in the light of the definition of "person" giving in clause (5). It is, therefore, clear that private, non-official, parties are not subject of this Constitutional provision and no order, interim or final, can be passed against them. CMA No. 4430/2001 is liable to be dismissed as, through it, a direction to the builder is sought.
Two clauses of the prayer in CMA 3934/01 are, again, for orders against private respondents, which are similarly liable to rejection for. The same I reason. One prayer in this application is to retrain official respondents form .Issuing any certificate or permission for sale or occupation of any part of the disputed plot or building. This general and blanket prohibition cannot be granted. The petitioners have neither mentioned as to which of the official respondents intend to issue such certificate or permission, nor how this is prohibited by law.
11. Neither Mr. Naeemur Rehman said a word about the necessity of the site inspection prayed for in CMA No. 3935 of 2001, nor it can be granted because the object is to ascertain disputed facts, which is not done in Constitution petitions.
12. A mention of the arguments submitted by the learned Advocates for various respondents has been omitted because they were in reply to the contentions of learned Advocate for the petitioner, and all of them would be relevant at the stage of admission of the petition which is already over, and at the regular hearing which is still ahead.
For the reasons discussed above, all the three Civil Miscellaneous Applications are dismissed. An early regular hearing would be in the interest of the parties.