Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 22.4.2003 passed by learned Lahore High Court (Bahawalpur Bench) Bahawalpur, in ICA arising out of judgment dated 15.12.1996 passed by learned single Judge whereby writ petition preferred on behalf of petitioners has been dismissed which has been kept intact vide judgment impugned.
2. Precisely stated the facts of the case are that land measuring 1317 Kanals located in Mauza Hansra, Tehsil and District Bahawalpur was acquired by means of Notification No, 29 dated 17.5.1955 after completion of necessary formalities as envisaged under the Land Acquisition Act, 1894 for the construction of Cantonment and accordingly the possession of land was delivered to the Armed Forces. Notification Bearing No, 28, dated 17.5.1955 was issued subsequently by the Acquisition Authorities and the land of Mauza Hansra and Mauza Dera Izzat was handed over to the Armed Forces for defence purposes but it could not be incorporated in the record of rights and omission was rectified by incorporating the same on the basis whereof Mutation No, 978 was sanctioned by the Revenue Authorities on 20.6.1990. The petitioners moved various authorities for award of compensation on the basis of above mutation but with no avail. The petitioners invoked the Constitutional jurisdiction and writ petition was preferred for the redressal of their grievances which was dismissed by the learned Single Judge of Lahore High Court (Bahawalpur Bench) in chambers vide judgment dated 15.12.1996 which was assailed in ICA which met the same fate, hence this petition.
3. Mr. Ejaz Ahmed Ansari, learned ASC entered appearance on behalf of petitioners and contended vehemently that the ordinary, poor and helpless civilians like petitioners could not have been deprived of their valuable landed property by the Military Authorities without its lawful acquisition and making payment of compensation. It is urged with vehemence that the ownership of the petitioners was admitted and accordingly it was not necessary to substantiate it again by producing evidence as it was never challenged and besides that the latest Jamabandi existing at the time of sanction of Mutation No, 978 was a solid documentary proof of the ownership of the petitioners. It was pointed out that due to an inadvertent omission, the names of few dead persons were incorporated in the original writ petition which does not amount to fraud as opined by the learned Division Bench in the judgment impugned and it could not be made a ground for dismissing of the ICA. It is contended with firmness that the fundamental rights regarding property of the petitioners have been infringed by the most powerful agency of the State which aspect of the matter has been ignored by the learned Division Bench which resulted in serious miscarriage of justice.
4. We have carefully examined the above mentioned contentions, scanned the entire record with the eminent assistance of learned ASC and perused the judgment impugned. The case of petitioners in short is that land measuring 1317 Kanals was acquired for the use of Military Authorities by means of Notification No, 29 but subsequently an area comprising of 693 Kanals was resumed unauthorisely, illegally and without any compensation. The pivotal question which need determination would be whether the land in question was resumed illegally, unauthorisely and without any compensation to its lawful owners or otherwise? An in, depth scrutiny of the record would reveal that no illegal or unauthorized resumption of land was made by the Military Authorities. The revenue history of the land in dispute is demonstrative of the fact that Mauza Hansra was consisting of 22 joint Khatas and pursuant of Mutation No, 12 it was got attested on 31.3.1951 in favour of Armed Forces and besides that 1302 Kanals, 16 Marlas had been mutated in favour of Armed Forces by the then Governor General of Pakistan by means of Notification No, 29 dated 13.5.1955 duly issued by the Commissioner Bahawalpur Division by whom 1084 Kanals, 10 Marlas 'of land was acquired for construction of cantonment which, due to some lapse and inadvertent omissions, could not be incorporated in the revenue record. Besides that 290 Kanals, 4 Marlas of land was purchased subsequently by the Cantonment itself in Mauza Hansra through Mutation No, 52 attested on 14.10.1959. Another chunk of land was acquired by the Armed Forces in the same revenue estate consisting of 17 Kanals, 15 Marlas vide Mutation No, 254 dated 7.3.1960 and resultantly the property acquired and purchased by the Armed Forces during 1952 to 1960 owned by the Armed Forces was 2325 Kanals, 5 Marlas. The revenue history at least makes one point crystal clear that the land in question was acquired by following the prescribed procedure of law through concerned civil functionaries of the Government and hence there is nothing on record to show that land in question was resumed illegally or unauthorizely by the Armed Forces. Had this been the case, appropriate action would have been taken irrespective of the fact who is who as nobody is above law. It has, however, been observed with grave concern that during all this period commenced from the initiation of proceedings qua acquisition of land, its resumption by the Military Authorities and construction of the board, no action whatsoever was initiated by the petitioners for the redressal of their grievances. The learned ASC when confronted with this aspect of the matter, no satisfactory answer could be given that why the petitioners had gone into deep slumber for an indefinite period and no action worth the name could be initiated under the relevant provisions of the Land Acquisition Act, 1894 which are capable enough to meet such sort of eventualities. The petitioners entered in civil litigation which was concealed while invoking Constitutional jurisdiction. It is an admitted feature of the case that petitioners had filed a civil suit with the averment that they were in possession of 925 Kanal, 1 Marla of land in Mauza Hansra, Tehsil and District Bahawalpur which was mutated in favour of Armed Forces through Mutations Nos, 697 and 698 got attested on 19.3.1986 alongwith an application for temporary injunction which was dismissed. The petitioners preferred an appeal before the learned District Judge but the suit was withdrawn for the reasons best known to the petitioners from the Court of learned Senior Civil Judge where it was pending adjudication. It is worth mentioning that a second suit for possession qua land in dispute was filed on 4.2.1987 by impleading the Central Government as a party through Secretary Ministry of Defence which was also dismissed vide judgment and decree dated 5.12.1988 as the plaint was rejected under Order 7, Rule 11 CPC. The appellate Courts available under the hierarchy of civil laws were never approached by the petitioners for the redressal of their grievances. As mentioned herein above from the scrutiny of record that two civil suits had been filed but probably on their failure the Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan was invoked by ignoring the fact the such controversial factual controversies could not be set at naught in writ jurisdiction. In this regard we are fortified by the document laid down in case of State Life Insurance Corporation v. Pakistan Tobacco Company.
Limited (PLJ 1983 SC 256), Muhammad Younas Khan v. Govt. of NWFP thr Secy. Forest & Agri.
Peshawar (1993 SCMR 618), Fateh Ali v. Province . of Balochistan thr Secy. Health (1997 SCMR 1687).
The learned ASC could not explain that what was the purpose of filing such civil suits and what compelled the parties to approach the learned High Court in writ jurisdiction. The learned ASC also failed to point out that what sequence wise actions were taken by the petitioners for the redressal of their grievance since 1955 when the possession of land was delivered to the Armed Forces.
5. The significant aspect of the matter is the absolute failure of the petitioners to show their entitlement and the ownership qua the land in dispute. The learned ASC was asked time and again to explain how the ownership of land in question was devolved upon the petitioners but no satisfactory answer could be given except that the record of rights pertaining to the years 1984 and 1985. What was the position prior to 1984 and 1985 and how the names of the petitioners were disappeared from the revenue record after 1984 and 1985, nothing plausible could be stated. The learned ASC was also asked as to whether the land in question was an ancestral property or it was purchased, got allotted or leased out to the petitioners but no answer could be given. The learned ASC was also asked to show as to whether the petitioners were in physical possession, cultivatory possession or constructive possession at the time when land in dispute was acquired but again no answer could be given. No documentary evidence except record of right pertaining to the years 1984 and 1985 could be produced to establish ownership and possession. The petitioners could have substantiated their claim by producing the copies of record of right pertaining to the years 1956 to 1990 when the disputed mutation Bearing No, 978 was got attested. The learned ASC was not in a position to mention the specific year when the title/ownership of the property was acquired and the question as to why the compensation could not be ,claimed at relevant time, also remained unanswered. Had the petitioners been land owners,' they would have been compensated but no claim whatsoever was made for compensation and rightly so because they were not the owners of the land which was acquired.
6. The case of petitioners in fact hinges upon the opinion of Military Estate Officer, Multan and Deputy Commissioner. Bahawalpur, having no . concern whatsoever with the Acquisition of land and disbursement of compensation. The petitioners even could not produce the record of land . pertaining to the years 1953. 1955 and 1969 On the basis of the copy of record of right pertaining to one year i,e, 1984-1985 which could not be supported by any other documentary evidence would not be sufficient to infer that the petitioners were owners of the property in dispute.
7. It has also been observed that writ jurisdiction was invoked on behalf of 35 petitioners by the special attorney, namely Ch. Munawar Ali who was a retired Revenue Officer, by incorporating various names of the dead persons in the writ petition by making their thumb impressions on the deed of attorney-ship which speaks a volumes about this integrity, morality and honesty. In fact the petitioners had not approached the learned High Court with clean hands.
8. It is well entrenched legal proposition that "conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in Constitutional jurisdiction. The principle that the Court should be lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court, in exercise of writ jurisdiction is bound to proceed on maxim he who seeks equity must do equity'. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek-relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands.
He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement. (Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137, Khan Gul v.
District Judge Attack PLD 1990 Lah. 263, P.G. Braganza v. Border Area Allot. Committee 1984 CLC 1479). The Constitutional jurisdiction as conferred upon under Article 199 of the Constitution cannot be invoked by any one who is guilty of bad faith and with unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such a relief.
9. In sequel to above mentioned discussion it can be inferred safely that the right of ownership/possession could not be established by the petitioners who kept mum for many decades and woke up from a deep slumber without having any legal right. The fact that the case of petitioners hinges on the opinion tendered by Military Estate Officer, Multan on some application of the petitioners and a note of the Deputy Commissioner, Bahawalpur who are in no way concerned with the real controversy. It hardly needs any elaboration that "a person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever rights, personal or otherwise, on which the application is based is established, no order can issue under Article 199." (Muntizma Committee v. Director KA. PLD 1992 Kar. 54, Mahmoona v. Ilam Din PLD 1984 Lah. 228). It must not be lost sight of that "party to writ petition must show that he had got a clear legal right as not to admit of a reasonable doubt or controversy. Disputed question of fact cannot be determined in Constitutional jurisdiction of a Court which is summary in its character." (Khairuddin v. Settlement Commissioner 1988 SCMR 988, Muhammad Ali v. Govt. of Sindh 1986 CLC 1123).
10.As mentioned herein above the petitioners had suppressed the fact that jurisdiction of Civil Court was also invoked for the redressal of their grievances and the civil suits filed by them were either withdrawn or dismissed. "A petitioner who wants a relief in exercise of the extraordinary jurisdiction under Article 199 of the Constitution disentitles himself to obtain relief if he makes misrepresentations or suppresses material facts, or does not make complete and correct disclosure of facts within his knowledge, Of makes deliberate misstatements in petition. Where petitioners had filed a civil suit for permanent injunction against respondents alleging the same facts and claiming same reliefs as made in the Constitutional petitions but had not referred to the institution of such suit in the Constitutional petition. Petitioners, could not be said to have come to Court with clean hands." (Ghulam Rasool v. Tauheed Akhtar 1991 MLD 1755, Raza Khan v. V.C. NWFP University of Engg. & Technology 1982 SCMR 560, Shams Din v. Additional Settlement Commissioner PLD 1985 Lahore 508, Muhammad Azhar v. Province of Punjab PLD 1975 Lah. 921, Ghulam Haider v.
Station House Officer CPS PLD 1988 Quetta 52). It is well entrenched legal proposition that "where the petitioner is guilty of fraud, or delay, default and misrepresentation, or he has made the petition with an ulterior motive, or he has suppressed the fact that he has already filed civil suit about subject-matter of writ petition, or that his civil suit and appeal on the same matter have been dismissed, the Court will not grant any relief under this Article." (Syed Shah v. Politic Agent Bajaur Agency PLD 1981 Pesh. 57, Muhammad Aman v. Atta Muhammad 1982 SCMR 270, Abdur Rahim Khan v. Town Committee 1985 CLC 2805, Rehmatullah Khan v. Pir Shahzada PLD 1961 Pesh. 40).
11.We have also adverted to the contention of learned ASC that it is a case of infringement of fundamental rights by a powerful institution of the Government by whom the lands in question were usurped without getting the same acquisitioned and by following the prescribed procedure and without any compensation. We are mindful of the fact that under Constitutional jurisdiction the High Court is fully empowered for enforcement of the fundamental rights but it must be satisfied with such allegations which are well-founded, without any bias and based on concrete evidence. It may be kept in view that the main object of the provisions as contained in Article 199 of the Constitution is the enforcement of the rights and not the establishment of the legal rights and in such view of the matter the petitioner who seeks to enforce such legal rights must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted. (State of Bombay v. United Motors Ltd. AIR 1953 SC 252, State of Orissa v. Ram Chandra AIR 1964 SC 685).
In the light of what has been mentioned herein above, the petition being devoid of merit is dismissed and leave refused.