FAQIR MUHAMMAD KHOKHAR, J.--- This appeal, by leave of the Court, is directed against the judgment dated 27.2.1997 passed by the High Court of Sindh, Karachi, whereby Revision Petition of respondent No. 1 was accepted and the injunctive order of the Trial Court as affirmed by the Appellate Court was vacated.
2. The appellant, Pakistan Railways, filed a suit for declaration and permanent injunction against the respondents in the Court of IVth Senior Civil Judge, Karachi (East.) It was averred therein that the suit land as described in the plaint was owned by the appellant and reserved in the master plan of respondent No. 1 for mass transit project. In the suit it was prayed that the auction of the suit property by, the respondents be declared to be illegal, mala fide and without lawful authority and they be restrained from giving effect to the auction held on 8/9-4-1991 and/or to finalize the same in any way, whatsoever. The appellant also moved an application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC, for the grant of temporary injunction. The same was allowed by the Trial Court, by order dated 3.2.1992, with the direction that the auction proceedings said to be carried out would not be given any further effect. The respondent No. 1, filed an appeal against the aforesaid order which was dismissed, by judgment dated 3.9.1992, by the District Judge, Karachi (East). However, the Civil Revision Application No. 214/92 of the respondent No. 1 was accepted by the High Court of Sindh by the impugned judgment dated 27.2.1997. The High Court took the view that the Karachi Development Authority (hereinafter referred to as the Authority) was a part and department of the Provincial Government and therefore, the suit could be instituted by the appellant only before this Court, and not before the Civil Court, in terms of Article 184(1) of the Constitution of Islamic Republic of Pakistan. .
3. The learned counsel for appellant argue that the High Court erred in law that the civil suit of the appellant raised a dispute between the Federal Government and the Provincial Government and that the Authority was a part of the Provincial Government. It was submitted that no such objection was taken by any of the respondents before the Trial Court as well as the Appellate Court. Both the Courts had granted the temporary injunction in favour of the appellant on the merits of the case and on well-settled principles of law. According to the learned counsel the dispute between the Pakistan Railways and the Authority being a statutory body, could not be treated to be a dispute between the Federal Government and the Provincial Government so as to fall within the exclusive original . Jurisdiction of this Court conferred by.Article 184(1) of the Constitution.
4. On the other and the learned counsel for the respondents submitted that no exception could be taken to the view of the High Court that a suit by the appellant against the Authority being a department of the Government raised a dispute between the Federal Government and Provincial Government, within the meaning of Article 184(1) of the Constitution. Therefore, the jurisdiction of the Civil Courts in the matter was rightly held to be ousted.
5. We have heard the learned counsel for the parties at length. We find that respondent No. 1, had not taken any objection at any stage of the proceedings before the Trial Court or the Appellate Court that the Authority was a department of the Provincial Government or that the civil suit by the Pakistan Railways against the said Authority could only be filed before this Court in view of Article 184(1) of the Constitution of Islamic Republic of Pakistan by treating the dispute as between the Federal Government and the Provincial Government. Since the High Court has passed the impugned judgment by holding the Authority to be a department of the Government, therefore, we consider it appropriate to examine its legal character.
6. The Authority was established by the Government .Under Clause (1) of. Article 3 of the Karachi Development Authority Order, 1957 (President's Order No. 5 of 1957). (hereinafter referred to as the Order). Clause (2) Article provides that the Authority established under Clause (1) shall be a body corporate, by the name of Karachi Development Authority, having perpetual succession and a common seal, with power, subject to the other provision of the Order, to acquire and hold property both movable and immovable, and shall by the said name sue and be sued. Under Article 4(1). Of the Order, the general direction and administration of the Authority and its affairs are entrusted to the Governing Body which may exercise all pOwers and do all acts and thing's, which may be exercised or done by the Authority. Under Article 8(1) of the Order, the Authority is empowered to appoint officers, advisers and employees for the efficient performance of its functions, on such terms and conditions as it may deem fit. By para ( I ) of the Schedule of the Order, the Authority is also covered by the definition of Local Authority, which also administers the local fund. The revenues and moneys received by the Authority do not form part of the Provincial Consolidated Fund. The High Court took an erroneous view that, the Government being empowered to dissolve the Authority, -therefore, it could be safely said to be a department of the Government.
It is not possible for us to agree with this reasoning of the High Court. We notice that under various Provincial Local Government Laws, the Local Councils are liable to suspension or supersession by the respective Provincial Governments. But such local councils, despite their suspension or supersession, continue to retain their entity separate and distinct from the Government. There is no doubt that by virtue of various provisions of the Order, the Authority is subject to certain amount of supervision and control by the Provincial Government. Nevertheless, the dispute between the Pakistan Railways and the Authority cannot be treated to be a dispute between the Federal Government and the Provincial Government so as to attract the exclusive Original Jurisdiction of 1 his Court under Article 184(1) of the Constitution.
7. It may also be observed that the employees of the Authority, although public servants within, the meaning of Section 21, P.P.C., are not Government servants. They are governed by the Karachi Development Authority (Employees Service) Regulations, 1972 framed by the Authority in respect of their terms and conditions of service and not by the Slndh Civil Servants Act, 1973 and the Service Rules framed by the Government thereunder.
8. In the case of Muhammad Rashid Bhatti v. K.D.A. Through its Secretary and another (PLD 1986 Kar. 130) it was held that the Authority was not a department of the Government. Similarly in Karachi Development Authority v. Province of Sindh through the Secretary, Excise and Taxation Department, Karachi and 4 others (PLD 1.977 Kar. 152) a learned Division Bench of the High Court of Sindh had taken the view that the Authority was a "local authority" within the meaning of law. It appears that none of these precedent cases was brought to the notice of the learned Judge in Chambers. The temporary injunction granted by the. Trial Court was affirmed by the Appellate Court on its merits, keeping in view the well-settled principles governing the grant of temporary injunction. The impugned judgment suffers from misinterpretation of law. The High Court was not correct in holding that the Authority was a Department of the Government and therefore, the suit between the two Governments could have been instituted only before this Court in view of Article 184(1) of the Constitution.
9. In the case of Pakistan through Secretary Ministry of Defence v. Province of Punjab and others (PLD 1975 SC 37) the Original jurisdiction of this Court was invoked against the imposition of property tax by Provincial Government under the provisions of West Pakistan Urban Immovable Property Tax Act, 1958, on the ground that the properties of the Cantonment Board were to be considered as vesting in the Central Government. It was held by reference to various provisions of the Cantonments Act, 1924 that the lands belonging to the Cantonment Board could not be treated to be that of the Central Government. Similarly in the case of Chief Secretary, Government of the Punjab. Lahore V. Commissioner of Income Tax, Lahore Zone, Lahore (PLD 1976 Lah. 258) a learned Division Bench of the Lahore High Court held that the Chief Secretary in his capacity as an Administrator of the Thal Development Authority was a distinct entity separate from the Provincial Government. The High Court further held that the liability of the Thal Development- Authority, if any, under the Income Tax Act was not devolved on the Provincial Government so as to constitute a dispute between the Federal Government and the Provincial Government for the purpose of Article 184(1) of the Constitution.
10. In the State of Bihar v. Union of India and another (AIR 1970 SC 1446), the State of Bihar had invoked the Original Jurisdiction of the Supreme Court of India against the Hindustan Steel Mills Ltd., and Indian Iron Steel Company Ltd., alongwith the Union of India for the negligence on account of the short delivery of Iron and Steel material in connection with the construction work of the Gandak Project. It was held by the Supreme Court of India by reference to Article 131 of the Indian Constitution (similar to Article 184 of our Constitution) that a body like the Hindustan Steel Mill Ltd., although controlled by the Government, could not be considered to be a State and that the original suit before the Supreme Court against such body alongwith Union of India was not competent.
11. For the foregoing reasons, this appeal is allowed and the impugned judgment dated 27.2.1997, passed by the High Court of Sindh is set aside. Consequently, the judgments of the Trial Court and of the Appellate Court granting the temporary injunction shall stand restored. There shall be no order as to costs.