The brief facts out of which present writ petition arises are that the Respondents Nos, 3 to 10 have encroached upon thoroughfare in village in-question by raising un-authorized constructions. The petitioner being aggrieved submitted an application before Respondent No, 1, who passed the order on the application of the petitioner on 31.7.2001, wherein the authorities were directed to remove un-authorized tress-passers from the land in-question.
2. Respondents Nos, 3 to 10 filed a civil suit before the competent Court against the order of the respondents dated 31.7.2001, who dismissed the same vide order dated 20.9.2001, thereafter the encroachers filed another suit which was also dismissed by the competent Court vide judgment and decree dated 17.7.2003. The petitioner submitted an application after dismissal of the suit, before Respondent No, 1, who did not take any action on the application of the petitioner. The petitioner has filed this writ petition with the prayer that the respondents be directed to remove un- authorized encroachment in implementation of order dated 31.7.2001.
3. The learned counsel of the petitioner submits that the respondents are duty bound to decide the application of the petitioner. When the learned counsel of the petitioner was asked that the petitioner had filed Writ Petition No, 17155-2003 with the same prayer for implementation of order dated 31.7.2001, which was dismissed as withdrawn on 9.3.2004, he submitted that the petitioner had withdrawn the said writ petition under the observation of this Court that petitioner has to approach Respondent No, 1 in the first instance. He further submits that the petitioner did not approach the respondents after dismissal of civil suit before filing of the said writ petition; therefore, the present writ petition is maintainable.
4. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce here order dated 9.3.2004 passed in earlier W.P. No, 17155-2003 filed by the petitioner by the same advocate through whom the petitioner has filed the present writ petition: "The learned counsel of the petitioner under instructions wants to withdraw the writ petition.
Dismissed as withdrawn."
The aforesaid order clearly reveals that the petitioner's counsel has withdrawn the earlier writ petition without permission to file fresh one. It is painful to note that the petitioner had filed earlier Writ Petition No, 171552003 through Mian Abdul Aziz, Advocate and this writ petition has also been filed by the petitioner through the said advocate. The contents of Para No, 6 of the present writ petition are not in consonance with order dated 9.3.2004 passed in the aforesaid Writ Petition No, 17155-2003. This fact clearly brings the case in the area that the petitioner has 'approached this Court with unclean hands by mis-representation of facts in Para No, 6 of the present writ petition and advocate has also prima-facie committed professional misconduct by mentioning in Para No, 6 of the present writ petition that the petitioner had withdrawn the said writ petition under the observation of this Court. Keeping in view the young age of advocate, I am not inclined to issue notice to the counsel of the petitioner. It is settled principle of law that Constitutional jurisdiction is discretionary in a character, he who seeks equity must come to the Court with clean hands. As mentioned above, the petitioner has mis-represented the facts in Para No, 6 of the Constitutional petition; therefore, I am not inclined to exercise my discretion in favour of the petitioner, as per law laid down by the Honourable Supreme Court in the following judgments:-- "Abdul Rashid vs. Pakistan and others" (1969 S.C.M.R. 141)
"Principal King Edward Medical College vs. Ghulam Mustafa" (1983 S.C.M.R. 196).
7. It is also settled principle of law that Constitution is social binding contract between the people of Pakistan and organ of the state. It is the duty and obligation of the public functionaries to act in accordance with law in view of Article 4 of the Constitutional read' with Section 24-A of the General Clauses Act. It is pertinent to mention here that the poor citizens are being penalized by inaction of the public functionaries and on account of in-action of public functionaries, the load of work of this Court is increasing day-by-day and people has to file Constitutional petitions even for the purpose to secure the copies of orders passed by the public functionaries, which is not in consonance with mandate of Constitution and is not healthy sign to keep the society in be fitting and progressive manners in accordance with injunction of Islam. In such circumstances, the country will fall in the area of chaos. The society can only run smoothly by providing justice to the people of the County.
The root caused for non-providing of justice is basically organ, whose duty is to act and execute under the law as highlighted and interpreted by the Honourable Supreme Court in the following judgments:-- 'Zia-ur-Rehman's case" (PLD 1973 SC 49).
'Mian Nawaz Sharif 's case" (PLD 1993 S.C. 473).
8. It is also settled principle of law that every body, who-so-ever is bound to obey the command of the Constitution by virtue of Article 5(2) of the Constitution, as per principle laid down by the Honourable Supreme Court in "Ch. Zahoor Elahi's case (PLD 1975 S.C. 383). The Honourable Supreme Court has also laid down principle that the public functionaries should act within parameters of the Constitution and law, as per principle laid down by the Honourable Supreme Court in "Zahid Akhtar's case" (PLD 1995 S.C. 530). The Superior Courts have also laid down the principle that the public functionaries should act promptly and decide the applications of citizens without fear, favour, nepotism, with reasons and within reasonable time in the following judgments:-- "M/s. Airport Support Service vs. Airport Manager, Karachi, (1998 SCMR 2268).
"Zainyar Khan vs. Chief Engineer C.R.B.C." (1998 S.C.M.R. 2419).
It is also held by this Court that no body should be penalized by act of authority in "Ahmad Latif Qureshi vs. Controller of Examination Board of Intermediate, Lahore" (PLD 1994 Lahore 3).
9. However in the interest of justice and fair play, let a copy of writ petition be sent to Respondent No, 1, who is directed to decide the application of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and Respondents Nos, 3 to 10 preferably within three months, after verifying the record of the department, in case the petitioner has already filed an application before him and he has not decided the same till date and also the petitioner has not availed any other remedy against the said order till date. The petitioner is directed to appear before Respondent No, 1. in his office at 11.00 a.m. on 20.5.2004, who is directed to, decide the application of the petitioner strictly in accordance with law either himself or send the same to competent authority for its decision, who is also directed to decide the same in terms of aforesaid direction of this Court till 20.8.2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
10.The learned counsel of the petitioner is directed to hand over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, Addl. Advocate General, who is directed to send the same to Respondent No, 1 for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned law officer for onward transmission to Respondent No, 1 for necessary action and compliance. The learned law officer is also directed to send one copy of this order to the Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore, who is directed to formulate policy and issue necessary instructions to the public functionaries to decide the applications of citizens promptly without fear, favour, nepotism, with reasons and within reasonable time. Since Pakistan-is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic concept of fair play and social justice. The state functionaries like Respondent No, 1, are expected to act fairly, justly and for the advancement of the justice, in a manner which should not give to any one any case of complaint on account of discriminatory treatment or otherwise, coupled with the principle that no one suffer on account of the act of the authority.
With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges.