SABIHUDDIN AHMED, J.- This appeal is directed, against an order of Learned Single ]Judge whereby the appellants have been restrained from disturbing the possession and interfere with the works of the respondent with respect to certain lands in Deh Khanpur, National Highway, District Malir and the respondents have also been restrained from parting with possession or creating any third party interest in the aforesaid land.
2. It appears that there is some dispute over the land in question between the parties and the respondents filed Suit No. 1201/1998 seeking declaration of title having purchased the same from the previous allottee and permanent injunction against the appellants from interfering with their possession. The case of the appellant on the other hand has been that the land was occupied by 153 Engineering Battalion and VOI Transport Battalion of the National Logistics Cell (NLC) in 1983 and 1985 respectively. The appellants, however, were unable to place any document before the Court establishing their right to occupy the land whereupon the impugned order was passed. The appellant's case appears to be that the two battalions were in possession of 87 acres of land and in 1992, 10 acres were leased out to one Abdul Rasheed Jatoi for industrial purposes in contravention of Rules and at a rate far below the market price. The aforesaid Abdul Rasheed jatoi sold it to Muhammad Hanif one of the partner of the respondent in violation of the ban imposed by the Provincial Government.
3. The respondent No. 1 alongwith the plaint moved an application for interim injunction against dis-possession and interference with work on the disputed relief whereby interim property on the part of the appellant was sought. The Learned Single judge, passed an order restraining the defendants , (including the appellants herein) their agents or officers from "taking any adverse, coercive or other action so as to disturb the possession and interfere with the work of the plaintiff on the land......... ". At the same time it was ordered that the respondent No. 1, if in possession shall not part with possession or create any third party interest in the property. The appellants have impugned this order in appeal.
4. M/s. G.M. Qureshi and Abdul Rauf Khan Learned counsel for the appellants have raised a two- fold contentions before us. In the first place it is urged that the lease in favour of the aforesaid Abdul Rasheed jatoi stands cancelled in terms of Section 3 of the Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 (hereinafter mentioned as the Ordinance) and therefore, the injunction granted favour of the respondents has become infructuous. Secondly it is contended that the findings of the Learned Single judge to the effect that the possession of the appellants and the restriction against raising of construction imposed upon the respondents is prima facie unlawful and is not sustainable in law.
5. In support of the first contention Mr. G.M. Qureshi Learned counsel for the appellants has argued that upon the enforcement of the Ordinance w.e.f. 3.1.2001 the leases for 4 acres of land executed in February, 1992 and for 6 acres in july, 1993 stood cancelled.
6. Dr. Farough Naseem Learned counsel for the respondent No. I on the other hand has contended that assuming that the Ordinance is applicable to the land in dispute, the respondent has submitted in writing before the Learned Single judge that in case the Committee required to be appointed under Section 4(1) of the Ordinance determines the market value of the property at the time of allotment to be higher than the amount paid by the aforesaid respondent, the latter will pay the difference within the specified time. He has further contended that the cancellation of allotment in favour of the respondent No. 1 cannot be deemed to have become, effective merely upon the promulgation of the Ordinance, but could only take effect after the Committee in question has performed its functions according to law and the allottee has failed to comply with its directions.
7. At this stage it may be pertinent to examine the provisions of the Ordinance, which only comprises of 6 sections. Its purpose as the preamble states is to "provide for cancellation of certain allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purposes, at rates lower than the market value in violation of law or ban....."
8. Sections 3 and 4 of the Ordinance, which are the operative provisions may be reproduced as follows:-
(3) Notwithstanding anything contained in any law for the time being in force or any agreement or judgment or order of a Court, but subject to other provisions of this Ordinance, the allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purpose at the rates of lower than the market value in violation of law or ban from lst January, 1985 shall stand cancelled.
(4) (1) Government may appoint a committee for carrying out the purposes of this Ordinance.
(2) Where the committee, after making such enquiry as deemed fit is satisfied that the allotments, conversions or exchanges of urban State land are obtained or granted for residential, commercial or industrial purposes at the rates lower than the market value in violation of law or ban, it shall determine the amount of loss caused to Government and call upon the person concerned to pay such amount within the specified time."
9. Indeed the above provisions, in accordance with well-settled principle of interpretation of Statues need to be read together. Section 3 no doubt provides that allotments of State land at rates lower than the market value shall stand cancelled, but Section 4(2) requires a Committee to make an enquiry for determining whether the allotment was made at a rate less than the market value which has been defined to mean under Section 2(6) as the value of the land at the time of allotment, In other words, the cancellation under Section 3, could, prima facie, take effect after market value at the relevant time has been determined by the Committee. It is equally important to keep in view that under Section 4(2) even if the allotment is found to be in violation of the law or a ban on allotments the Committee is still empowered to determine the amount of loss caused to the Government and call upon the person concerned to pay such amount within a specified time.
It therefore, appears that even in such cases the allotment is not to be treated as void ah initio but the allottee can acquire ownership rights after payment of the amount of loss caused to the Government within the time specified by the Committee.
10. In view of the above, it is difficult to subscribe to the proposition that the respondent No. 1 stood divested of all interests in the property upon mere promulgation of the Ordinance. The law appears to confer upon him the right to acquire ownership rights and valid title to the property after having made-up the losses sustained by the Government. We are, therefore, unable to be persuaded by the contention that the respondent No. 1 lost all interests in the property.
11. Major Abdul Rauf Khan learned counsel for the appellant further argued that the allotment in favour of the predecessor-in-interest of the respondent No. 1 was even otherwise illegal an as such the aforesaid respondent could not be said to have acquired any legal interest in the property. He relied upon the observations of the Honourable Supreme Court in Lamvin Traders v. Deputy Administrator Evacuee Trust Properties (1993 SGMR 1707) for the proposition that a sale in violation of the prescribed method did not confer vested rights in the property. Indeed the proposition of law is well-established but in our humble view the judgment cited is of little help to the Learned counsel. In the aforesaid case allotment of land under M.L.R.-57 in favour of the appellant after inviting bids under sealed cover was held illegal as the law required disposal through open auction.
Nevertheless, upon an offer by Learned counsel for the respondent, their Lordships remanded the case to the High Court for determination of its current market value granting an opportunity to the appellant to pay the same and get the property transferred in his favour. In the instant case such an opportunity is to be given by the mandate of the Ordinance itself. Moreover, the Ordinance expressly covers illegal allotments or those made in violation of a lawful ban on transfers imposed by the Government.
12. Mr. Abdul Rauf Khan next argued that the appellant was a branch of the Pakistan Army and restrictions on the use of the property in the vicinity of the area where the appellant was operating could always be imposed even upon a lawful owner under the provisions of the Works of Defence Act, 1903 and the Defence of Pakistan Rules, 1971. In this context, we are prima facie of the view that the N.L.C, is not a part of the Pakistan Army and have discussed this aspect of the controversy in some detail in our order in H.C.A. 87/2001, which was heard alongwith this appeal. Secondly, even if the occupation of the respondent be treated as a work of defence for the purpose of the Works of Defence Act, 1903, it appears that Section 3 of the Act no doubt enable the Federal Government to impose restrictions upon the use and enjoyment of land in the vicinity of such work, but such restriction can only be imposed upon compensating the owner or user of such land. The Act provides a detailed mechanism for determination of compensation on patterns similar to the Land Acquisition Act and contemplates issuance of notifications by the Federal Government. Admittedly no such notification was ever issued. As regards the Defence of Pakistan Rules, it might suffice to say that though the Defence of Pakistan Ordinance, 1971 and the Rules made thereunder no doubt conferred certain emergency powers on the Federal Government to requisition private property, but the Ordinance was repealed way-back in 1977 through Ordinance XXXII Of 1977. At the same time, the requisitioned Land (Continuance of Powers) Ordinance was promulgated which allowed the Government to exercise certain powers over requisitioned land, but obviously no further land could be Requisitioned after the repeal of the Ordinance. Therefore with profound respects to Mr. Abdur Rauf Khan's industry in preparing an elaborate argument, we regret we are unable to subscribe to his views.
13. In any event while our above observations are only tentative and intricate legal questions ought to be resolved at the trial, it is not possible to say that the respondent did not have a prima facie case. In such matters the dominant requirement for grant or refusal of temporary injunction is to preserve the corpus of the dispute so as to ensure that the interests of both parties are duly protected. In the above circumstances, we are of the considered opinion that the interim order protecting the possession of the respondent at the same time restricting them from parting with possession or creating third party interest is eminently just and fair, and there is no reason to interfere with the exercise of judicious exercise of discretion on the part of the Learned Single judge.
Therefore, we dismissed this appeal vide our short order dated 24.1.2002. However, keeping in view the importance of the matter, we would direct that the suit may be disposed of as expeditiously as possible and preferably within six months from today.