2009 YLR 2000




Per Khalid Ali Z. Qazi, J–

Constitution of Pakistan (1973) Arts. 4,23 & 24–

r/w Specific Relief Act (I of 1877)–Ss. 42 & 54–

Civil Defence Act (XXXI of 1952), S. 9–Civil Defence

(Special Powers) Ordinance (VI of 1951) Ss. 2 & 6–Civil

Defence (Special powers) Rules 1951, R. 10–Civil

Procedure Code (V of 1908) O. XXXIX Rr. 1 & 2–

Mr. Rashid Anwer, learned counsel for the plaintiff, has not been able to satisfy this Court, if any notification in terms of above provisions has ever been made regarding the land of the plaintiff.  I have perused the above provisions of law and rules and the notification issued by the Central Government delegating their powers to the Provincial Government and finds that no restrictions have been imposed under any provisions of the Civil Defence act, 1952 or the law imposing the restrictions in respect of the plaintiff’s property.  Under the circumstances, the provisions of the rules, which are subservient of the Act XXXI of 1952 cannot be imposed under the facts and circumstances of the case.

Thus, when a restriction, which is not otherwise imposed by the law, is trusted upon the owner qua the free user of his property, it is clear case of the breach of fundamental rights of the defendant.

The learned counsel for the plaintiff has only referred that said Rule 10 of1951 Rules which has been framed  under section 2 and subsections (2) and (3) of section 6 of the Ordinance VI of 1951, is not shown to be independently applicable to the situation and proposition in hand i.e. if the defendant can be restrained from the construction of an Educational Institution.  Because section 9 of the Ordinance VI of 1951 and Act XXXI of 1952, quite germane in this behalf, which enunciates that the Central Government can delegate their powers to  the Provincial Government, which has already been delegated as narrated in the earlier part of the order.  But the Provincial Government has not exercised his powers in this behalf for imposition of restriction restraining the defendant from raising any construction on the plot in question.  On the contrary Provincial Government has allotted the plot to the defendant for establishment of School/Educational Institution and  building plan of the defendant.  Admittedly, when no restrictions have been imposed under any provision of Act XXXI of 1952, how can the Rule 10 of Civil Defence (Special Powers) Rules, 1951, which is subservient, thereto, be invoked to imply the restrictions.

I did not find any illegality or irregularity in raising school building on plot in question as the permission to construct school building and approval of building plant was done by the authorities enjoying powers to do so under the Cantonment Laws.  Furthermore, the defendant being owner of the plot in question has acquired fundamental rights to hold and enjoy the property rights as hold and enjoy the property rights as guaranteed under Articles 4 and 23 of the Constitution and in protecting or safeguarding the rights of easement and  safety of the plaintiff, the fundamental rights of the defendant in respect of ownership of its plot could not be violated or infringed.

At present a presumption is required under illustration (e) of Article 129 of Qanoon-e-Shahdat Order, 1984, can be raised that official acts have been regularly performed.  However, all these contentions require deeper appreciation of evidence which can properly be thrashed out at the time of trial.  From the tentative assessment of the material available on the record, I am of the considered view that the plaintiff have no prima facie case at this stage.  The balance of convenience is also not in favour of the plaintiff as great inconvenience will be caused to the defendant being owner of the property in exercising its legal right to deal with its property as per Law.  No irreparable loss will be caused to the plaintiff if injunction is refused because loss if any can be compensated in the shape of damages, which has already been claimed in the  sum of US $ 480 million in the suit.

To sum-up, both the listed applications filed by the plaintiff are dismissed with no order as to costs. Interim order passed on 5-8-2008 is vacated and the order of attachment dated 21-8-2008 is recalled. [pp. 2011, 2012, 2013] A,C, D,E & F.

Rashid Anwar for Plaintiff.

Dur Muhammad for Defendant

Date of hearing : 15th May, 2009.

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