2005 CLC 388 KARACHI-HIGH-COURT-SINDH

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SAEED AHMED VS CANTONMENT BOARD, MALIR CANTT Cantonments Act 1924--273 , Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965--10 , Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965--11 , Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965--3 , Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965--5 , Civil Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders--1 , --S. 273---Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), Ss.5(1), 3, 10 & 11---Civil Procedure Code (V of 1908), O.XXXIX, R.1---Suit by plaintiff assailing notice issued under S.5 Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 seeking mandatory injunction of restoration of possession and restraining order not to interfere with plaintiff's running and operating petrol pump---Contention of the plaintiff was that Cantonment Board could not' claim any protection under S.273, Cantonments Act, 1924---Contention of the defendant was that suit was barred under S.273; Cantonments Act, 1924 as well as under Ss.5, 10 & 11 Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 as in terms of S.273 of the Cantonments Act, 1924 no notice, as required under said provision, was served and, therefore, suit was not maintainable and that Cantonment Board, in good faith had taken action and in accordance with the provisions of Government Lands and Buildings (Recovery of Possession) Ordinance, 1.965, therefore suit was barred under Ss. 10 & 11 of the said Ordinance---Validity---Held, admittedly the Cantonment Board had taken the impugned action; in purported exercise of authority conferred in terms of S.5(1) of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, therefore, Cantonment Board could not be allowed to use statutory shield under S.273 of the Cantonments Act, 1924---Notice was specifically dispensed with in terms of S.2.73(4) of the Cantonments Act, 1924 in suits for an injunction, reason being that, the giving of the notice or the postponement of the institution of the suit proceedings would defeat the object, therefore suit was not barred under S.273, Cantonments Act, 1924---Action impugned was the notice and consequent taking over possession of a running petrol pump---Suit was filed after the possession was already taken over by the Cantonment Board in purported exercise of jurisdiction of S.5, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, therefore, bar in terms of S.10 of the said Ordinance in the present case, would not be attracted---Nothing was brought on record to show that any enquiry was ever held before passing an order of eviction, therefore question of satisfaction of the authority before passing an order, as required under S.5, Central Government Laws and Buildings (Recovery of Possession) Ordinance, 1965 did not arise--¬Lease existing in favour of plaintiff being valid for the relevant period, prima facie the plaintiff was not in unauthorized occupation in terms of S.2(e)(ii) of the Ordinance---Action of the Cantonment Board, in circumstances, could not be said to be within four corners of the Ordinance therefore bar to invoke the jurisdiction of High Court could not be pressed into service---Bar to launch proceeding or suit, within contemplation of S.11, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 was attracted only where two conditions were fulfilled to the effect that the action assailed was done in good faith and it fell within the four corners of the said Ordinance---Plaintiff, in circumstances, was able to make out a good prima facie case, balance of convenience was also in his favour while the defendant had displayed utter disregard for the due process of law which conduct was to be admonished---Defendant was in circumstances, restrained from operating petrol pump in any manner.