PLJ 2023 Lahore 183
Civil Aviation Rules, 1994--
----R. 68--Civil Aviation Ordinance, (XXXII of 1960), S. 6-A--Constitution of Pakistan, 1973, Art. 199 & 199(4)--Establishment of structure free zone--Unconstitutional act of respondents--Obligation of petitioner--Judicial restraint--Oral assertion of petitioner--Issuance of notification--Security threats--Construction fase of new airport--Ingredients of interim relief--Petitioner has failed to point out or bring forth any unconstitutional act committed by Respondents, any interference by High Court within purview of Article 199 of Constitution, will badly hamper initiatives being taken by Respondents for security purposes and will also put an embargo on such like security based activities in future--For grant of interim relief, it was obligatory upon Petitioner to establish that all three ingredients (i) prima facie arguable case; (ii) irreparable loss; and (iii) balance of inconvenience were in favor of his claim, which he failed to establish for grant of injunction in his favor--Petitioner has attached with this petition only impugned Notification and other irrelevant documents not about any action taken by Respondents under Ordinance or Rules and merely on oral assertion of Petitioner, no interim relief can be granted-- It is settled law that for grant of interim injunction, all three ingredients must co-exist and if one ingredient is missing, injunction cannot be granted. [Pp. 188] B, C & D
Judicial Restraint--
----In absence of any glaring illegality or violation of fundamental rights, it is imperative that Courts should exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative, particularly, taken for security enhancement because judicial restraint encourages judges to exercise their powers with restraint and wisdom and to limit exercise of their own powers to intervene in matters relating to policy of Government having financial perspective, outcome and exercise. [P. 187] A
Constitution of Pakistan, 1973--
----Art. 199(4)--An interim relief can only be granted as per mandate of Article 199(4) of the Constitution where it has been clearly stated that under writ jurisdiction, before making an interim order, Court has to look into the public interest which should not be harmed/ hampered in any manner. [P. 189] E
2004 SCMR 1092, 2000 CLC 1094, 2019 CLC 1486 &
2017 MLD 1493 ref.
Barrister Haroon Dugal, ASC for Petitioner alongwith Mr. Waheed Alam, Advocate.
Mr. Rashid Hanif, Deputy Attorney General and Malik Ahtesham Saleem, Assistant Attorney General for Federation of Pakistan (on Court call).
Mr. Mujeeb-ur-Rehman Kiayani, Additional Advocate General Punjab (on Court call).
Date of hearing: 20.1.2022.
PLJ 2023 Lahore 183
[Rawalpindi Bench, Rawalpindi]
Present: Jawad Hassan, J.
Syed FAISAL MEHBOOB--Petitioner
versus
FEDERATION OF PAKISTAN etc.--Respondents
W.P. No. 145 of 2022, decided on 20.1.2022.
Order
The Petitioner has filed this writ of prohibition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) to restrain the Respondents from (a) interfering into his peaceful possession over the land mentioned in prayer clause (i) of this petition; and (b) demolishing any constructions raised thereupon under the garb of notification dated 08.06.2015 (the “Impugned Notification”) issued by Respondent No. 1.
2. Barrister Haroon Dugal, ASC submits that the Petitioner is aggrieved against the Impugned Notification permitting establishment of a structure free zone (the “Zone”) within the limits of the New Islamabad International Airport (the “Airport”) because it was issued for a limited period, on temporary basis, for a specific purpose to cater for the security threats apprehended during the construction phase of the Airport and since the said purpose has been fulfilled, it is no longer enforceable, being lapsed with the afflux of time. He further submits that the Impugned Notification itself states that the Zone shall remain in force till the security environment of the area is improved, therefore, now the provisions of Rule 68 of the Civil Aviation Rules, 1994 (the “Rules”) will be applicable. He maintains that the Respondents cannot interfere into the peaceful possession of the Petitioner over his land, description of which is given in Paragraph-3 of this petition, under the garb of a lapsed notification unless a new notification under Section 6-A of the Civil Aviation Ordinance, 1960 (the “Ordinance”) is issued by the competent authority. He next contends that the Respondents have usurped lawfully owned land of the Petitioner by classifying the same to be falling within the Zone and also restrained him from raising construction of any kind over it. Barrister Haroon Dugal, ASC also clarifies that even otherwise the Impugned Notification has neither been approved by the Federal Cabinet nor published in the official gazette in terms of Article 91 of the Constitution. He states that if a collective glance is taken on the provisions of Sub-Articles (1) and (6) of Article 91 of the Constitution, it would be clear that the Impugned Notification had to be approved by the Federal Government but this procedure was not adopted at the relevant time. He claims that the land of the Petitioner does not fall within any structure fee zone declared under the law and he had been enjoying its peaceful possession for the past several years without interruption from any corner but now the Respondents are trying to dispossess him from the same under the garb of the Impugned Notification and without any legal instrument/backing. He submits that since the Impugned Notification had lapsed for all intents and purposes, the Petitioner entered into an agreement with some persons/purchasers who were desirous to establish a housing scheme in the name & style of “NOVA City” but Respondents have also started extending threats to the said purchasers with the implementation of the Impugned Notification. He contends that if the Respondents are not restrained from making illegal interference into the Petitioner’s land, he will suffer from an irreparable loss and injury. Reliance is placed on the judgments reported as Government of Sindh through Secretary Agriculture and Livestock Department and others versus Messrs Khan Ginners (Private) Limited and 57 others (PLD 2011 SC 347), Karachi Metropolitan Corporation, Karachi versus Messrs. S.N.H. Industries (Pvt.) Limited, Karachi and 2 others (1997 SCMR 1228), Metropolitan Corporation, Islamabad through Mayor versus Chairman C.D.A. (Capital Development Authority), Islamabad and another (PLD 2021 Islamabad 144), Muhammad Iqbal versus Government of the Punjab through Secretary Education Schools, Punjab, Lahore and 4 others [2020 PLC (C.S.) 747], Mst. Sumaira versus District Coordination Officer/Chairman, District Recruitment Committee, Sargodha and 2 others [2013 PLC (C.S.) 274] and Ch. Muhammad Nazir Cheema versus Mujahid Sher Dil, DCO/Chairman, District Task Force, Sialkot and 3 others (2012 CLC 764).
3. Learned Law Officer has objected to the maintainability of this petition by stating that the Petitioner has no locus standi to file this petition because he has sold the land in question.
4. In response Barrister Haroon Dugal, ASC submits that the Petitioner has only entered into an agreement with some purchaser of the land which has not yet been transferred in their names. He further submits that the Petitioner’s fundamental right of property as enshrined under Articles 23 and 24 of the Constitution are involved and he is before this Court for protection of the said rights.
5. Notice be issued to the Respondents for 16.02.2022. Learned Law Officer shall seek instructions from the relevant quarter(s) and also ensure submission of report and parawise comments by the answering Respondents within a fortnight. A senior officer of the office of Respondent No. 1, well conversant with the facts of the case, will also appear on the next date to explain the position.
C.M.No. 01/2022
6. Dispensation sought for is allowed subject to all just and legal exceptions. C.M. stands disposed of.
C.M.No. 02/2022
7. This is an application under Section 151 of CPC for grant of an interim relief in the titled writ petition.
8. Suffice it to mention here that the Impugned Notification was issued by Federal Government to protect the aviation industry of Pakistan in order to curtail the tendency of incidents about aeroplane crashing, as happened last year in Karachi. Any restraining order, if issued by this Court, while exercising powers under Article 199 of the Constitution, can possibly put a complete halt and hiatus to the initiatives taken by the Government for encouraging security plans/activities in country by enhancing security environment through the aviation industry to avoid any incident. In the absence of any glaring illegality or violation of fundamental rights, it is imperative that the Courts should exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative, particularly, taken for the security enhancement because judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective, outcome and exercise. The scope, purpose and limit of the concept of judicial restraint has been vastly elaborated by the Hon’ble Supreme Court of Pakistan in the case of Dossani Travels Pvt. Ltd. and others versus Messrs Travels Shop (Pvt) Ltd. and others (PLD 2014 SC 1), relevant portion of which is reproduced hereunder for ease of the matter:-
“27. In contemporary age, there has been a significant growth in the judicial review of administrative actions and the grounds on which the Courts interfere have been expanded. This expansion, however, “has taken place in the shadow of competing concerns of ‘vigilance’ and, ‘restraint’ and it is faithfulness to these dual concerns of vigilance and restraint which produces the unique supervisory jurisdiction which is the hallmark of judicial review.” If the Courts fail to maintain this delicate balance, none else but people’s confidence in the judiciary would be the worst victim. As aptly observed by Radford:
One of the principal aims of a system of judicial review must be to maintain a high level of public confidence in the administrative decision making process and this must also be borne in mind in assessing the level of judicial intervention which is desirable. It can be argued that the Courts’ desire to achieve a fair and just result in an individual case must be tampered with a commitment not to interfere unduly with the achievement of policy objectives.”
In another judgment, reported as Human Rights Case No. 14392 of 2013 (2014 SCMR 220), the Hon’ble Supreme Court of Pakistan has held that “the Court exercises judicial restraint in matters of government policy except where fundamental rights are violated. In his treatise “Judicial Review of Public Actions” (second Edition p. 639), Justice Fazal Karim has quoted the passage from the book “Taking Rights Seriously” by Ronald Dworkin (p. 137-149) wherein he described that the term “Judicial Restraint argues that the Court should allow the decisions of other branches of government to stand, even when they offend the judge’s own sense of the principles required by the broad constitutional doctrines, except when those decisions are so offensive to political morality that they should violate the provisions on any plausible interpretation, or, perhaps, when a contrary decision is required by clear precedent”. Judicial Restraint asserts and advocates that the judges should hesitate to strike down laws unless they are obviously unconstitutional but in this case, the Petitioner has failed to point out or bring forth any unconstitutional act committed by the Respondents, therefore, any interference by this Court within the purview of Article 199 of the Constitution, will badly hamper the initiatives being taken by the Respondents for security purposes and will also put an embargo on such like security based activities in the future. Even otherwise, for grant of interim relief, it was obligatory upon the Petitioner to establish that all three ingredients (i) prima facie arguable case; (ii) irreparable loss; and (iii) balance of inconvenience were in favor of his claim, which he failed to establish for grant of injunction in his favor. In this case, when confronted with the facts how the Respondents are implementing the Impugned Notification and whether there is any written letter or further instructions issued by them against the Petitioner, Barrister Haroon Dugal, ASC fails to satisfy the Court. The Petitioner has attached with this petition only the Impugned Notification and other irrelevant documents not about any action taken by the Respondents under the Ordinance or the Rules and merely on oral assertion of the Petitioner, no interim relief can be granted. It is settled law that for grant of interim injunction, all three ingredients must co-exist and if one ingredient is missing, injunction cannot be granted. This view is
fortified from the judgment of Hon’ble Supreme Court of Pakistan in the case of Puri Terminal Ltd. versus Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092) by holding as under:
“21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such, relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facia case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit.”
Further reliance can also be placed on the judgments reported as Saleem Mahmood Akhtar and 2 others versus Assistant District Officer and 5 others (2020 CLC 1094), Dewan Petroleum (Pvt.) Ltd. versus Oil and Gas Investment Ltd. (2019 CLC 1486), Mst. Rukayya Parveen and another versus Province of Punjab through D.O. (R) Pakpattan Sharif and 4 others (2017 MLD 1493), Mst. Azra Parvez and 3 others versus Sheikh Ashfaq Hussain and 7 others (2015 CLC 1695) and Gulzar Begum versus Ehboob Hussain alias Mehboob Khan (2012 YLR 809). Moreover, in a writ petition, an interim relief can only be granted as per mandate of Article 199(4) of the Constitution where it has been clearly stated that under writ jurisdiction, before making an interim order, the Court has to look into the public interest which should not be harmed/hampered in any manner, therefore, keeping in view the fact that the Petitioner has failed to make out a prima-facie case in his favour and balance of convenience is not tilted in his favour for grant of interim relief, this application is dismissed.
(Y.A.) Petition dismissed
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