' This petition has been filed on behalf of firm Beg & Co., through Mirza Masood Beg. Against an order dated 3-8-1979 (Annex. PM whereby the respondent No, 2 rescinded the contract awarded to Messrs Beg & Co. For phase I, part III of the Comprehensive Sewerage Scheme, Sahiwal. It was admitted for regular hearing on 17-12-1979 to consider the question of mala fides including the personal motivation of respondent No,
2. In order to appreciate the contentions raised it will be appropriate to take note of the fact that the 'petitioner firm carries on business of construction and allied works on contracts awarded by various Departments of the Government and in particular the Public Health Engineering Department of the Government of the Punjab. It appears that the petitioner firm was executing various contracts for respondent No, 3, Executive Engineer, Punjab Health Engineering Department, Sahiwal, Respondent No, 2 was for some time posted as Executive Engineer, Public Health Engineering Department, Sahiwal. According to the petitioner on 13-6-1974 at the insistence of respondent No, 2 Nasim Ahmad respondent No, 4 was taken as a partner of the firm which was at that time engaged in Part-I of the Comprehensive Sewerage Scheme. It is stated that thereafter on 10-12-1976 the firm was again reconstituted at the behest of respondent No, 2 by addition of four of his nominees, namely Nasim Ahmad respondent No, 4, Abdul Hafeez respondent No, 5, Imdad Hussain Kazmi and Malik Zia Ullah. Thereafter it is stated that the firm was allocated work for Part-II of the Sewerage Scheme which was completed to the satisfaction of the Government. It is stated that on 3-10-1976 Part-III of the Sewerage Scheme was allocated to the petitioner firm. Subsequently, disputes arose between the partners of the firm and on 21-3-1979 the Power of Attorney of Mirza Masood Beg was revoked by the other partners of the firm and information to this effect was conveyed to the Department. Thereafter a request was made to the Department on behalf of the other partners for the stoppage of payment to Mirza Masood Beg and it appears that orders were made by respondent No, 2 to the effect that payment should be released to the firm only after obtaing signatures of all the partners. This stopped work on Part III of the Scheme. This action was probably taken on the basis of clause 26 of the contract agreement which stipulates that any change in the constitution of the contractual firm shall be subject to prior approval of the Engineer Incharge. It appears that thereafter the firm was unable to carry on the construction work. It further appears that respondent No, 2 was held responsible by Mirza Masood Beg for this state of affairs and various resolutions were passed by the Contractors Association of Sahiwal District, copies of which have been appended with the petition, against respondent No, 2 demanding inquiry into his conduct. It further appears that on 16-5-1979 the firm was dissolved but learned counsel for respondents Nos, 4 and 5 has stated that this dissolution was got effected through exercise of fraud and misrepresentation but admits that no steps have been taken by his clients to obtain cancellation of dissolution deed. Thereafter it appears that on 22-6-1979 approval of Engineer Incharge was sought in terms of clause 26 afore referred to the reconstitution of the firm. In these circumstances on 27-6-1979 respondent No, 3 informed the petitioner firm that the said request was under consideration, but on 19-7-1979 respondent No, 2 in exercise of the authority vesting in him under sub-clause (a) of clause (3) of the contract agreement issued a notice to the petitioner firm directing it to show cause within a period of seven days from the date of issue of notice as to why the contract-agreement should not be rescinded for violation of the provisions of clause 26 of the agreement. According to the petitioner a reply was sent to this notice on 26th of July 1976 and received in the Office of respondent No, 2 on 28-7-1979 for which purpose a certificate of the Superintendent of Post Office of Sahiwal Division has been appended with the petition as Annex. P.
16. But according to respondent No, 2, no such reply was received in his office on behalf of the petitioner on 28-7-1979. It is further stated by respondent No, 2 that a reply in fact was received in his office on 4-8-1979. It is stated that the signatures on the acknowledgment are not those of any official of the office of respondent No, 2. (Photo copies of the receipts are Annexs. R. 16 and R. 17). Be it as it may, it was in these circumstances that on 3-8-1979 the impugned order (Annex. 1) was made by respondent No, 2 rescinding the contract awarded to the firm.
2. From the above narration of facts it appears that the impugned order was passed by respondent No, 2 purportedly in exercise of the powers vesting in him under clause 3 of the contract-agreement, that it is not denied that the firm was reconstituted after its dissolution on 16- 5-1979, that under clause 26 of the contract-agreement prior approval of the Engineer Incharge for such reconstitution was necessary, that no such .Prior approval had been obtained, that respondent No, 2 was possessed of the authority to rescind the contract in the event of violation of any clause of the contract _ including clause 26 thereof and that such a rescission order was issued by respondent No, 1 on 3-8-1979. However, the petitioner has impugned the said order on the ground that the revision order by Respondent No, 2 is mala fide and that the rescission order was passed without hearing the petitioner. An examination of the pleadings of the petitioner shows that extremely serious allegations of misconduct and impropriety have been levelled against respondent No, 2 apparently for the purpose of substantiating the plea of mala fide raised against him. The purport of these allegations is that respondent No, 2 was in collusion with Mirza Masood Beg a partner of the petitioner firm with the object of securing illegal gain and profit for himself and that Mirza Masood Beg had for this purpose been from time to time giving various amounts of money as bribe to respondent No, 2 and that the impugned action had been taken against the petitioner firm on account of the fact that Mirza Masood Beg had decided to unmask the conduct of respondent No,
2. For this purpose the petitioner had on 27-6-1979 submitted a memorandum to the Advier to the Government of the Punjab, Housing and Physical Planning, Lahore, which is Annex.
P. 7 with the petition, and another memorandum dated 18th of July, 1979 to the Chairman Anti- Corruption and Inquiries Punjab, Lahore which is Annex. P-8 with the petition, and then on 12th of September 1979 he filed the present petition before this Court in which apart from reiterating the allegations earlier made in. Annexs. P-7 and P-8 afore referred, further details of the conduct of the respondent No, 2 were furnished. An examination of the pleadings of the petitioner shows that the following allegations have been made against respondent No, 2 :-
(i) That respondent No, 2 placed Ch. Nasim Ahmad respondent No, 4 as a partner of the petitioner firm as his nominee ;
(ii) that Mirza Masood accepted Ch. Nasim Ahmad as partner of his firm on 13-6-1974, as nominee of respondent No, 2, who was at that time an XEN Public Health Engineering at Sahiwal; VW that a share of the profits was paid to respondent No, 2 in the name of his nominee Nasim Ahmad ;
(iv) that a fictitious account was opened in the name of one Tariq in which payments to the account of respondent No, 2 were made by the petitioner firm.
(v)that the petitioner firm took care of the household expenditure, rental etc. Of respondent No, 2 ;
(vi) that the petitioner firm paid rupees one lac to respondent No, 2 on 31-7-1977;
(vii) that the petitioner firm paid commission amounting to Rs, 92,000 on various contracts to respondent No, 2;
(viii) that on 12-10-1976 when respondent No, 2 was S E Public Health Engineering at Multan, the firm was reconstituted at the behest of respondent No, 2 by including four of his nominees aforenamed as its partners for benefit of respondent No, 2;
(ix) that as a consequence of this reconstitution, the petition, the petitioner firm was allocated work for Part II of the Sewerage Scheme, Sahiwal; (x)that in consideration thereof once again on 3-10-1977 respondent No, 2 accepted the petitioner firm's tender for Part III of Sewerage Scheme ;
(xi) that on 31-3-1978 the petitioner paid Rs, 1,00,000 to respondent No, 2;
(xii) that respondent No, 2 persisted in his demands for more money and as a consequence of the failure of the petitioner to meet the same got the power of attorney in favour of Mirza Masood Beg cancelled by the other partners.
3. It will be seen from the above that Mirza Masood Beg voluntarily admits having bribed respondent No, 2, inducted his nominees as partners of the petitioner firm for the purpose of transferring illegal gratification to respondent No, 2, admits having obtained tenders from respondent No, 2 solely on the basis of illegal consideration paid by him to respondent No, 2 and also admits that in actual fact responent No, 2 who was for some time as XEN Public Health, Sahiwal and later as SE Public Health, Multan, supervising execution of the Sewerage Scheme awarded contracts to the petitioner firm and was in fact a partner of the firm and was receiving benefit from the contract and also his share of the profits, It was in these circumstances that I called upon learned counsel for the petitioner to satisfy me whether on the admitted facts the petitioner was entitled to the relief claimed in this Constitutional petition. Specifically, the question was whether a petitioner who admittedly approaches the Court with unclean hands and seeks to retain ill-gotten gains could be allowed relief in constitutional proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan.
4. In this context, learned counsel for respondent No, 2 at the initial stage drew attention to the contents of A nnexs. P-7 and P-8 and paras. 4 to 6 of the writ petition and pointed out that admittedly the petitioner was u consenting party to the corruption, illegalities and misconduct alleged by him and that this was a classical case of the petitioner approaching this Court with unclean hands. It is stated that in fact the petitioner was saying that undoubtedly he had approached the, Court with unclean hands, but he was seeking the assistance of the Court to obtain further advantage of illegal and improper conduct and retention of ill-gotten gains and also wanted restoration of the contract admittedly secured in the manner indicated above. It is further argued that the actual relief sought by the petitioner was for securing ill-gotten gains and that the petitioner admittedly himself had induced the allegalities and improprieties and for a period of five years had benefited therefrom, that Respondent No, 2 was Government servant who as a consequences of the allegations made by the petitioner with the sole objective of securing ill- gotton gains, had been suspended and was facing an inquiry and further stated that respondent No, 2 had fully rebutted the allegations of the petitioner in his written statement point by point, but the petitioner had failed to file a counter-affidavit. He relied on the judgment in Mardan Shah's case (1) to contend that in these circumstances, no counter affidavit having been filed, no action ought to be taken by this Court on the allegations of the petitioner. Be it as it may, the question which is arising at this stage is not whether the allegations are correct or not, but whetner on the basis of the admitted facts as contained in the pleadings of the petitioner, he is a person who ought to be allowed relief by this Court in exercise of its constitutional jurisdiction.
5. Learned counsel for the petitioner submitted that Article 4 of the Constitution conferred upon every citizen the right to be dealt with in accordance with law and further referred to Article 199 of the Constitution, and I understood him to assert that whenever a violation of rights was involved, it was incumbent upon this Court to issue a writ, notwithstanding the fact that the petitioner may have approached the Court with unclean hands or that he may be seeking the retention of ill- gotten gains. Surprisingly, learned counsel when asked to quote judicial precedents in support of his contentions, stated that he would not be citing any decision of any Pakistani Court as he ordinarily does not do so unless compelled. This is to say the least a most regrettable statement from a counsel who is duty bound to assist this Court and to point out judicial precedents of the superior Courts of Pakistan which may be relevant and of assistance to the Court in the disposal of the issues before it. Learned counsel in these circumstances firstly referred to an observation in the case of Sheffield Corporatton v. Luxford (2) to the effect that the word "may" is a permissive expression but there are cases in which for various reasons, as soon as the person who is within the statute entrusted with power, it becomes his duty to exercise it, and that one of such cases is where there is an application to him to use the power which the Act gives, in order to enforce a legal right of the applicant. This statement of law is unexceptionable as it is. Learned counsel for the petitioner then relied on the case of Dudhes of Argill v. Duke of Argil (3) where it was observed that it is principle of equity that one who seeks equity must come with clean hands, but that the cleanliness required is to be judged in relation to the relief sought, and it was argued that the relief claimed by the petitioner in the present petition was for a declaration that the order was without jurisdiction as it was mala fide, and that refusal to afford relief in these circumstances would amount to sustaining the impugned order. Refusal to allow relief to one who seeks assistance of this Court in the exercise of its Constitutional jurisdiction on the ground that he has approached it with unclean hands, will not necessarily result in sustaining the impugned order. Such order can be impugned before other forums and the mere refusal to exercise constitutional jurisdiction on such score cannot in any case be deemed to imply validation of the impugned order.
6. It was at this stage that the hearing of the case was adjourned for further arguments to the next day, when Mr. Mumtaz Hussain, Advocate for the petitioner made a statement that he did not dispute the proposition
(I) PLD 1974 Kar. 735 (2) 98L3RKED512
(3) (1965) 1 A E K 611 that the jurisdiction vesting in this Court under Article 199 of the Constitution was a discretionary jurisdiction which could be refused in appropriate cases, but he contended that relief could not be denied on the ground that the petitioner had approached the Court with unclean hands. He conceded, that the word "may" used in Article 199 of the Constitution confers discretionary jurisdiction on the superior Courts.
7. In reply, Mr. S. M. Zubair learned A. A.-G. Submitted that a superior Court is not duty bound to issue a writ in exercise of the Constitutional jurisdiction vested in it under Article 199 of the Constitution, regardless of the various considerations identified and applied by superior Courts in relation to the exercise of the Constitutional jurisdiction. He in this context relied upon a judgment of the Supreme Court in the case of Ronaq All v. Chief Settlement Gommissioner (1) where it was observed that an order in the nature of a writ of certiorari or mandamus is a discretionary order and that it could be refused on the ground that it would cause unjust enrichment or where it would be contrary to the policy of the law or where it would result in sustaining an order obtained. By supression of material facts or result in perpetuation of injustice or perpetuating a manifestly illegal order. In Ronaq Ali's case, the Supreme Court observed that the Court could even refuse to set aside an order which was clearly without jurisdiction. He also referred to the judgment of the Supreme Court in Chief Settlement Commissioner v. Raja Muhammad Faza! (2), where the Court reiterated that discretionary relief ought not to be granted by the High Court to allow retention of ill-gotten gains by a party, even if because of any technical reason an order made by a Tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice.
8. In rebuttal, Mr. Mumtaz Hussain quoted Pakistani precedents and relied upon the judgments of Supreme Court in Manzoor Elahi v. Federation of Pakistan (3) and Ch. Zahoor Elahi v. State (4) and contended that the Constitution was meant to be followed and that the Court should interfere if a functionary misused his powers and that technicalities should not be allowed to come in the way of justice. But these judgments were given in proceedings in the nature of habeas corpus effecting the liberty of a citizen, where obviously the conduct of the petitioner would not be material. Learned counsel for the petitioner also referred to the judgment of this Court in Hadi All v. Government of West Pakistan (5), in which it was observed that though the jurisdiction under Article 170 of the Constitution was discretionary and the petition could be dismissed on the ground that the conduct of the petitioner disentitled him to relief, yet as a finding had been given in the impugned order against the petitioner, that he had flagrantly abused his position as a trustee, in the circumstances of the case, relief would be allowed to the petitioner in spite of his alleged conduct. This is not so in the present case, as there is no finding against the petitioner with regard to his conduct which requires to be adjudicated upon or set aside. Learned counsel for the petitioner also referred to a passage from the treatise on "Constitutional and Administrative Law of Siri Lanka" by Cooray, wherein at page 356 it has been stated that discretionary relief can be refused on the ground of unreasonable delay, acquiescence waiver or consequence, of issue of the writ, but conceded that the author has not said anything about refusal of relief on the basis of the
(1) PLD 1973 SC 236 (2) PLD 1945 SC 331
(3) PLD 1966 SC 66 (4) PLD 1977 SC 273
(5) PLD 1956 Lab. 824 petitioner's conduct or his coming to the Court with unclean hands. Learned counsel also referred to para. 162 of Volume I of Halsbury's Laws of England Fourth Edition, wherein it is stated that certiorari may be issued to quash proceedings if the conduct of the party applying, has not been such as to disentitle him to relief, and contended that in the footnotes the instances referred to only related to cases where there had been acquiescence, delay and failure to object to the jurisdiction of the Court below. An examination of the foot note however shows that it is permissible to refuse certiorari on the basis of the applicant's unreasonable conduct. Learned counsel also referred to paragraph 1305 of Vol. XVI of Halsbury's Laws of England (Fourth Edition) but an examination of the same shows that it is permissible for a Court to refuse relief to a plaintiff whose conduct with regard to the subject matter of the litigation has been improper, on the basis of the maxim that the plaintiff in equiry must come with perfect propriety of conduct and with clean hands. A further examination of this paragraph shows that it is well established that the depravity on the basis of which relief may be refused can be on a legal as well as a moral plane.
9. Learned counsel for the petitioner also cited a number of rulings of the superior. Courts of Pakistan to the effect that discretion had to be exercised properly that even in discretionary matters a Court can interfer in the exercise of its Constitutional jurisdiction but these will only be o relevance if I proceed to determine the validity of the impugned order. The jurisdiction conferred on this Court under Article 199 of the Constitution of Pakistan is discretionary in nature and is regulated by the principles identified and declared by the Supreme Court of Pakistan and the super Courts from time to time and accordingly where the petitioner seeking the aid of this Court in exercise of its Constitutional jurisdiction approache the Court with unclean hands or to secure the retention of ill-gotten gains, it is not incumbent on the Court to allow the relief and in fact it can b refused on this score. However, such refusal does not mean the validation of the impugned order, which may if permissible in law, be impugned b resort to alternate remedies permissible in law.
10. In view of the conduct of the petitioner noted above, it is abundantly clear that he himself admits having bribed respondent No, 3 and of having committed various improprieties for the purpose of securing the contract of which he seeks enforcement through these proceedings. He admits having paid almost Rs, 4,00,000 to respondent No, 2 and also of his having borne the household and other expenditure of the said respondent and al concedes that he was given share of the profits accruing to the petitioner firm to respondent No,
2. To say the least all this was not only improper but reprehensible and illegal as well. In these circumstances, I cannot bring myself to allow any relief to a petitioner whose hands are sullied, unclean and tainted as aforedescribed, nor can I allow these proceedings to be used for the purpose of retention of ill-gotten gains or the securing of the fruits of a contract improperly secured. This would be counter to public policy and the law regulating the exercise of the discretionary jurisdiction of this Court. Ref : Chief Settlement Commissioner v. Raja M. Fazal (1), Wall Muhammad v. Sakhi Mahammad (2), Ronaq All v. Chief Settlement Commissioner (3), Abdul Ghani v. Abdul Ghafoor (4), Tufail
(1) PLD 1975 SC 331 (2) PLD 1974 SC 106
(3) PLD 1973 SC 236 (4) 1968 SCM R 1379 Ahmad v. M. Zin. Ullah Khan (1), Wall Mehammad v. Home Secretary (2) and Amir Abdullah v. M.
Yokub (3).
11. In these circumstances and for the reasons aforesaid this petition is dismissed. The dismissal of this petition on the basis of the admitted conduct of the petitioner should not in any manner be taken to imply the correctness of the allegations made against respondent No, 2, which as stated earlier have been specifically denied by him as false and concocted.
12. In the circumstances of the case, there will be no order as to costs.
(1) P 1. D 1965 SC 269 (2) PLD 1972 Quetta 33
(3) PLD 1967 Lab. 722