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Constitutional Petition No.D-277 of 1984, decided on 10th May, 1984.

----Art. 9--Grant of land--Constitutional petition--Notice requiring petitioner to appear before Commissioner for disposal of his appeal Suit same cause of action pending and confirmed injunction subsisting in favour of petitioner--Constitutional petition challenging issuance of notice, held, Misconceived Interference in matters where notice. Of hearing is given and case is to be decided after hearing, is permitted and justified only where proceedings are shown to be without juris diction--Petition dismissed subject to right of petitioner to take remedies if case decided adversely to him.

J.H. Rahimtoola for Petitioner.

A. Sattar G. Shaikh, Addl. A.-G. for Respondents.

.--The petitioner is an educationist, and his case is that he requested the erstwhile Government of West Pakistan for grant of 250 Acres of land for a period of 99 years. Land was granted, and a document was executed on 14-1-1965. It is stated that physical possession is with the petitioner. In paragraph 4 of the petition, it is also stated that preliminary work of survey, clearance and levelling was completed upto 1968. Roads were made and water tanks were built. The petitioner also states that he constructed a bungalow-cum-office at a cost of Rs.7,00,000. On 5-12-1970, the then Deputy Commissioner of Karachi cancelled the lease, so that an appeal was filed before the then Revenue Commissioner of Sind. The Revenue Commissioner, however, set aside the order of the Deputy Commissioner. The last paragraph in the order of the Revenue Commis sioner would seem to indicate that cancellation was made, because the project, for which the grant of land was made, had not been pushed. The order states that the petitioner, who was the appellant before the Revenue Commissioner, stated in unequivocal terms that he was still prepared to push the project through. By the same order, the Revenue Commissioner also directed that site inspection should be carried out by the District Authorities after a year, or so, to ensure that the petitioner was going apace with the fulfilment of the project. It is admitted case that the public school, for the establishment of which this grant was made, has not yet started. In fact, even the construction has not started.

Again on 7-1-1976, the Deputy Commissioner, Karachi, reopened the matter. The order, which is Annexure 'D' on record, shows that the condition imposed on the grant was that the school had to be built up within a reasonable time. A reference was also made to the earlier order of the Revenue Commissioner, which provided that the site inspection should be carried out by District Authorities after one year to ensure whether any progress had been made for achievement of the object for which the land was granted. As stated earlier, since no progress had been made, the Deputy Commissioner cancelled the grant.

It was in these circumstances that the petitioner made some representations before the then Revenue Minister of Sind, and some other authorities, and obtained some orders of stay. However, in 1979, the petitioner filed a suit, bearing No.661/1979, on the Original Side of this Court, wherein relief was sought by way of declaration and injunctions, prohibitory as well as mandatory, to the effect that the land still belonged to the petitioner, to restrain the Government functionaries from interfering with the possession of the land, and also a mandatory injunction to oblige the Water Management Board to give water connection to the petitioner. An-ad-interim injunction was prayed for, which was granted, and the same, we are informed by the learned counsel, has been confirmed after hearing.

In the plaint in the suit, averments were made in paragraphs 16, 17, 18 and 19 to the effect that, against the order of cancellation by the Deputy Commissions-r, are appeal had been filed. In the written statement that had been filed by the Deputy Commissioner and Commissioner, it was stated that the averments to the effect of appeals having been filed were correct. In that context, we may record that Mr. A. Sattar G. Shaikh has stated that these were not regular appeals, but some communications, which may be called representations, or, applications, presented before the Revenue Minister and other applications, and such communications are being treated as appeals, so that the petitioner should have no cause of grievance that his appeals have not been disposed of.

At present, the petitioner has been given a notice by the Commissioner of Karachi to appear for the disposal of his appeal. It is against such notice that the present petition has been filed.

This petition appears to be misconceived. A suit on the same cause of action is pending on the Original Side of this Court. In that suit, a confirmed injunction is subsisting against the respondents. It would have been proper for the petitioner to have made an application before the learned Single Judge hearing the suit to restrain the Commis sioner from disposing of the appeal until the suit was disposed of. This he has not done, but, in any case, no prejudice will be caused to him, because even now he can resort to that remedy, and, if aggrieved, he could even file an intra Court appeal. On the other hand, this Court has rarely interfered in matters, where only a notice of hearing is given, because, in fact, the case has yet to be decided after hearing Interference at such early stage is permitted and justified only if one can show that the proceedings, on which the statutory functionaries want to embark, are wholly without jurisdiction. This cannot be termed to be the case, for it is admitted case that appeals have been filed by the petitioner himself, and those need to be disposed of.

On such short ground, we dismiss this petition in limine, but subject to the right of the petitioner to take remedies, if the learned Single Judge decides the case adversely to the petitioner, or, the case is decided by the statutory functionaries adversely to him.

M.I. Petition dismissed.

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