LAHORE DEVELOPMENT AUTHORITY MUHAMMAD ISMAIL QURESHI vs FIRDOUS

ORDER

' CH. IJAZ AHMAD, J.--- We intend to decide following petitions by one consolidated order having similar facts depending upon each other:--

(1) C.P.No,1923-L of 2004

(ii) Criminal Petition No,366-L of 2004.

2. Brief facts out of which C.P. No, 1923-L of 2004 arises are that the respondent filed Constitutional Petition No,1271 of 1995 with the following prayer:--- "In the circumstances it is most respectfully prayed that

(i) The respondent be directed to proceed in accordance with the law and the rules on the subject and adjust the land of the petitioner under Firdous Steel Mill measuring 16 Kanals contained in Khasra No,1173/437 measuring 5 Marlas, 439 measuring 9 Kanal 12, Marlas, 1386/1177/437 measuring 1 Kanal, 11 Marlas 1171/438 measuring 4 Kanals, 12 Marla be adjusted as it is after getting development charges at the rate of Rs,13,000 per Kanal.

(ii) The respondent be directed not to acquire the portion of land under the Steel Mill measuring 5 Kanal, 6 Marla, 30 Sft.. For the widening of the Road unless they pay the market value of this land or exempt commercial plots of an equal value in lieu of the acquisition of this land".

3. The petitioner filed conceding report and parawise comments in the said writ petition. In view of report and parawise comments of the petitioner, the constitutional petition was accepted vide judgment dated 13-9-1999. The petitioner being aggrieved filed an application under section 12(2), C.P.C. For setting aside the judgment dated 13-9-1999. During the pendency of the application, the petitioner also filed C.M. No,1 of 2003 under Order VI, rule 17 read with section 151, C.P.C. Seeking permission to amend petition under section 12(2), C.P.C. And to produce additional documents for factual determination of the dispute between the parties. The afore-said applications were dismissed by the Lahore High Court vide order dated 10-2-2004. Hence, the present petition.

4. Brief facts out of which Criminal Petition No,366-L of 2004 arises are that respondent filed contempt petition against the petitioner as the petitioner failed to comply with judgment dated 13- 9-1999 passed in Writ Petition No,1271 of 1995. The contempt petition was disposed of by the learned High Court vide order dated 10-2-2004 directing the petitioner to comply with the judgment dated 13-9-1999 within a period of 40 days and to submit compliance report to the Additional Registrar of the said Court. Hence, the present petition.

5. The learned counsel for the petitioner submits that report and parawise comments filed by the officials of the petitioner accepting the claim of the respondent is factually and legally incorrect. He further submits that petitioner had filed an application under section 12(2), C.P.C. Along with application under Order VI, rule 17 for amendment of the application under section 12(2), C.P.C. The learned Lahore High Court erred in law to dismiss the applications as the amendment could be allowed at any stage of the proceedings. He further urges that petitioner has made a foundation in the application to show that there was no Steal Mill existed at the spot as is evident from the contents of the application bearing C.M.No,1 of 2003. He further urges that respondent secured judgment in its favour in connivance with the staff of the petitioner as the staff of the petitioner had filed report and parawise comments by accepting the claim of the respondent in spite of the fact that it was not in accordance with the ground realities. He further submits that private respondent failed to bring the case within the parameters of Article 25 of the Constitution as the facts and circumstances of the Asif Block are entirely different. Even otherwise the case of the Asif Block was approved by the Chief Minister/Chairman of the LDA on their representation keeping in view the ground realities whereas the case of the respondent is entirely different and has no similarity with the case of Asif Block.

6. Learned counsel for the respondent submits that constitutional petition was rightly accepted by the learned High Court vide judgment dated 13-9-1999 after perusing the report and parawise comments which was filed by the competent officer of the petitioner, therefore, petitioner could not wriggle out from the stand taken by the officer of the petitioner on the well-known principle of estoppel and waiver. He further submits that petitioner has not taken a single ground in terms of ingredients of section 12(2), C.P.C. As is evident from the contents of application under section 12(2), C.P.C. He further urges that petitioner had filed an application under section 12(2), C.P.C. After considerable delay, therefore, learned Single Judge was justified to ignore the same in the impugned order. He further urges that learned Single Judge was justified that petitioner has filed application under section 12(2), C.P.C. For the purpose of re-hearing of the constitutional petition which was not in consonance with the mandatory provisions of section 12(2), C.P.C. He further submits that judgment of the Lahore High Court dated 13-9-1999 is final between the parties. He further submits that case of the petitioner is similar to the case of Asif Block, therefore, judgment of the learned High Court dated 13-9-1999 is in accordance with the Article 25 of the Constitution as the Constitution did not allow any authority to take different actions qua the cases of the citizen whose cases are similar in nature. He further urges that private respondent had submitted various applications before the petitioners in terms of the observation of the Town Planner as is evident from the contents of the award. He further urges that petitioner had failed to take any action on the applications of the respondent; therefore, learned Single Judge was justified to take note of the inaction of the petitioner. He further submits that exemption policy of the petitioner is relatable to the residential plots whereas the land underneath of the Steal Mill is not covered by the said policy, therefore, action of the respondent is without lawful authority which fact was duly noted in the judgment of the learned High Court dated 13-9-1999.

7. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce section 12(2), C.P.C. To resolve the controversy between the parties:--- ' Section 12(2), C.P.C..---"where a person challenges validity of the judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making any application to the Court which pass the final judgment, decree or order and not by a separate suit".

' (It is pertinent to mention here that under lines are ours)

8. The remedy under section 12(2), C.P.C. To seek annulment of a decree on the ground of want of jurisdiction, misrepresentation or fraud is not the only remedy. A decree may be set aside through an appeal, a revision and review, if available under law. In this view of the matter, the contention of the learned counsel of the respondent that petitioner has filed an application under section 12(2), C.P.C. For re-hearing of the main writ petition and the judgment dated 13-9-1999 is final between the parties, has no force.

9. Before proceeding further it is appropriate to know the meaning of words "fraud" or "misrepresentation" used in section 12(2), C.P.C. On the basis of dictum laid down by the Supreme Courts and in the Legal Dictionary.

"Fraud"

"Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar.

221."

"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134).

"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCM R 2184).

"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two person that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sarni Ullah Khan 1986 CLC 2655).

"For the purpose of subsection (2) of the section 12 of the C.P.C. The plea of collusion is as good as the plea of fraud" (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lair. 396).

"Fraud"

' "A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury". "A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated"

(Blacks Law Dictionary Fifth Edition).

"Misrepresentation"

"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." (Black's Law Dictionary Fifth Edition).

"Collusion"

"An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose". (Black's Law Dictionary Fifth Edition).

10. It is settled proposition of law that fraud cannot be directly proved, it has to be inferred from the surrounding circumstances and conduct of the parties. It is also well-settled law that fraud vitiates the most solemn proceedings. Reference may be made to the following cases:---

(i) Talab Hussain and others v. Member Board of Revenue and others 2003 SCM R 549, (ii) Lal Din and another v. Muhammad Ibrahim 1993 SCM R 710 and (iii) Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.

11. It is pertinent to mention here that all the ingredients of collusion are proved in the present case by submitting report and parawise comments of the representative of the petitioner wherein the claim of the respondent was accepted in violation of the ground realities existed at the spot. This fact alone is sufficient to establish that private respondent is a beneficiary and secured judgment from the High Court in connivance with the representative of the petitioner.

12. Now we examine the present case in the light of afore-said principle laid down by the superior Courts. It is admitted fact that respondent had filed Constitutional Petition No,1271 of 1995 wherein the present petitioner had filed consenting report and parawise comments on the basis of which judgment dated 13-9-1999 was secured by the respondent. In case the report and parawise comments filed by the petitioner in the said writ petition and contents of G.M.No,1 of 2001 and C.M. 1 of 2003 are put in juxta position, then it is crystal clear that the petitioner secured the judgment from learned High Court dated 13-9-1999 with the collusion of the Officer/Official of the petitioner which is not in consonance of the ground realities at the spot and is violative of the policy of the petitioner. The learned High Court also erred in law not to allow the application of the petitioner for amendment of the application under section 12(2), C.P.C. Under Order VI, rule 17, C.P.C. Which is against the law laid down by this Court in Rehmat Ali v. Muhammad Younas Haji and others PI,D 1963 SC 191. In view of controversy involved in this case, this application can be decided without framing the issues as the law laid down by this Court in Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCM R 662.

13. In view of what has been discussed above, the petition is allowed and is converted into appeal and the same is allowed in view of afore-said discussions. The impugned order dated 10-2-2004 of the learned High Court is set aside. Consequently application filed by the petitioner under section 12(2), C.P.C. And under Order VI, rule 17, C.P.C. Are allowed. Resultantly, judgment dated 13-9-1999 is set aside.

14. As both the parties have brought on record all the relevant documents and also argued the main constitutional petition before us by the learned counsel of the parties, therefore, we intend to decide the constitutional petition ourselves instead of remanding the same to the learned High Court to decide the case afresh in view of longstanding litigation pending adjudication before different fora. Even otherwise remanding of the case to the learned High Court would amount to increase the worries of the parties who had already suffered a lot due to submitting report and parawise comments by the petitioner's representative in violation of ground realities. This Court declined to remand the case to the High Court concerned in somewhat similar circumstances.

Reference may be made in Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCM R 782.

15. The respondent has based his claim on the basis of the observation of the town planner mentioned in award dated 12-6-1980 at page 71 of the paper book coupled with exemption policy of the petitioner. The observation in the award cannot give any right to the respondent unless and until the observation is based on provision of law. The respondent's counsel failed to point out any provision of law on the basis of which claim of the respondent is based. It is a condition precedent to show violation of the statutory provisions by the petitioner for maintaining a constitutional petition. Therefore, constitutional petition is not maintainable as there is no violation of statutory rules. In this regard reference is made to Ali Mir's case 1984 SCM R 433. Moreover, if the contents of the constitutional petition and contents of C.M. 1 of 2003 under Order VI, rule 17 and C.M. 1 of 2001 under section 12(2), C.P.C. Are put in juxta position, then it brings the case of private respondent in the area of disputed question of fact which cannot be decided in the constitutional jurisdiction as the law laid down by this Court in Muhammad Younis's case 1993 SCM R 618.

16. The petitioner in writ petition had taken a stand that on the land in question a Steel Mill existed whereas the true factual position at site is totally different. Similarly, exemption policy of the respondent is only applicable to residential plots, therefore, respondent cannot take the benefit of exemption policy.

17. We also do not find any discriminatory treatment with the respondent if the facts of Asif colony and the case of the petitioner are put together. Asif Colony being residential colony was allowed to be adjusted in another housing scheme i,e, Asif Block of Allama Iqbal Town by the petitioner. On the contrary Firdous Steel Mill (respondent) even remotely has no resemblance of housing / development scheme. This Court has laid down the principle for interference qua violation of Article 25 of the Constitution (discrimination) in I.A. Sherwani and others v. Government of Pakistan 1991 SCM R 1041. The relevant observation is as follows:---

(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; v) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;

(v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) That in order to make a classification reasonable, it should be based-

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification" ,

18. The learned counsel of the respondent failed to bring the case within the parameters prescribed by this Court in the afore-said judgment of I.A. Sherwani's case, therefore, we do not find any discriminatory treatment with the petitioner. In case contention of the learned counsel of the private respondent is accepted, then it would hit by principle of discrimination to the other inhabitants of the area who has secured only 10 Marlas plot whereas the petitioner through this constitutional petition want to secure 16 Kanals land which is not permissible under any canon of justice, fair play, equity and under the exemption policy of the petitioner and within the mandate of the Constitution.

19. In view of what has been discussed above, we do not find any force in the contention of learned counsel of the respondent and in the constitutional petition, therefore, same is dismissed with no order as to costs. Since the constitutional petition has been dismissed by us, therefore, order dated 10-2-2004 passed in Criminal Original No,1124/W of 2004 is also set aside and the Criminal Petition No,366-L of 2004 is converted into appeal and same is allowed in view of the afore-said discussions.