' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore. I propose to decide the same through this single judgment.
3. Precise facts giving rise to Writ Petition No 591 of 2010 are that in the year 1973, the Government- respondent acquired 256 Kanals land including 26 Kanals owned by father of petitioner, who did not receive compensation of land comprising survey Nos. 273,274 and 274/1 measuring 3 Kanals 15 marlas situated in Village Narrul, Tehsil and District Muzaffarabad. It is stated that an application was moved by father of petitioner to de-award the land in dispute, for which, he had not received compensation. On the basis of the above application the Government de-notified the land bearing survey No,273 measuring 10 marlas, whereupon, house was constructed by late father of petitioner.
It is alleged that process to de-notify the other land was still in progress and the higher authority time and again assured that the land in possession of petitioner would be de-notified in her favour.
It is averred that in the year, 1988, the disputed land already de-notified was again proposed for acquisition, however, the same was objected to by petitioner and matter was made over to Additional Chief Secretary (Development) Azad Jammu and Kashmir Government for hearing, inquiry and report. The Additional Chief Secretary, after inquiry reported that once the land was de- notified in favour of its owner the same could not be acquired under the Land Acquisition Act, 1894.
On the basis of the above report, the proceedings for acquisition of the land in question were dropped by the Prime Minister of Azad Jammu and Kashmir Government. It is also stated that matter with regard to. Other piece of land comprising survey Nos. 274 and 274/1 measuring 3 Kanals 5 marlas was still before the Court of law for implementation of order passed by the higher authority. It is averred that respondents through impugned notification dated 27-5-2010 proposed the disputed land for its acquisition third time despite the fact that the same was already de-notified in favour of its owner. The instant writ petition has been filed to challenge the vires of the above notification whereby, inter alia, land comprising survey No,273 measuring 10 marlas was notified by the Collector respondent for construction of Prime Minister House while exercising powers vested in him under section 4 of the Land Acquisition Act, 1894.
4. After admission of writ petition, the respondents were summoned to file written statement, which was duly filed on 3-11-2012. It is stated that petitioner has got no locus standi to file the instant writ petition because the Government has sole authority under the Land Acquisition Act, to acquire any land for public purpose. It is further stated that the land in question was required for construction of Prime Minister House, however, previously the same was de-awarded, as at that time, it was not needed for any public purpose. It is averred that father of petitioner constructed house and was living there, hence, the landed property remained in his possession. It is claimed that matter with regard to survey Nos. 274 and 274/1 was already decided and finalized which was no more sub juice before any authority and prayed for dismissal of writ petition.
5. Precise facts of Writ Petition No, 2137 of 2012 are that in the year, 1973, land measuring 256 Kanals was acquired by the Government including the land measuring 26 Kanals owned and possessed by late father of petitioner, who did not receive compensation of land in dispute comprising survey Nos. 273, 274 and 274/1 measuring 3 Kanals 15 marlas situated in village Narrul, which was occupied by him in shape of constructed house etc. It is stated that the Government-respondent was pleased to de-notify land comprising survey No, 273 measuring 10 marlas, whereupon, house was constructed by father of petitioner. It is further averred that disputed land remained in possession of petitioner, which was utilized for construction of residential house worth in millions. The possession of the land was not taken by the respondents as its compensation was not received by father of petitioner. It is alleged that respondents have threatened the petitioner to vacate the disputed land, on the pretext, that the same was required for construction of Prime Minister's House.
It is further alleged that construction of Prime Minister's House was neither included in Muzaffarabad City Development Project nor land in question was required for construction of Prime Minister House, as 22 Kanals land for the purpose, was already availtble on spot as reported by Tehsiidar, Muzaffarabad, however, land in dispute owned and possessed by petitioner was not included in the proposed plan. It is alleged that the official respondents willfully and deliberately failed to comply with orders of the Prime Minister of Azad Jammu and Kashmir Government passed time and again, hence, through the instant writ petition the petitioner solicited writ of mandamus for implementation of orders of the Prime Minister dated 21-4-2008, 20-3-2009, 14-4-2009, 25-9- 2009 and 2-11-2012, respectively.
6. A pre-admission notice was issued to the respondents for filing parawise comments; vide order dated 5-11-2012, which were duly filed on 22-11-2012. It is stated that the land in question was awarded in favour of the respondents in the year 1979; therefore, the petitioner has got no locus standi to file the instant writ petition, which is also attracted by principle of laches. It is further stated that matter with regard to disputed land was adjudicated upon by Civil Judge and Additional District Judge Muzaffarabad, which was repeatedly decided against the petitioner, therefore, due to principle of res judicata, the instant writ petition is not maintainable. It is claimed that petitioner unlawfully occupied the land in question; however, the concerned Department time and again made efforts to dispossess her, however, for protection of her unlawful possession she always succeeded to obtain stay orders from the Courts of law. Hence, could not be evicted. It is averred that the land in question was included for construction of Prime Minister House by expending a sum of rupees Seventeen billion, however, due to frivolous litigation initiated by petitioner, mobilized construction by Chinese contractors, could not be progressed and respondents obtained an irreparable loss on each day due to stay order granted by this Court. It is further stated that petitioner for mala fide reasons not impleaded party to Secretary Physical Planning and Housing as well as Muzaffarabad City Development Project; therefore, writ petition merits dismissal due to non-joinder of necessary party. It is further averred that in the year 1979, compensation for disputed land was received by the owner and prayed for dismissal of writ petition in limine.
7. The learned counsel for petitioner, Mr. Mohammad Yaqoob Khan Mughal, Advocate, while reiterating grounds of Writ Petition No,591/10 submitted that disputed land comprising survey No,273 measuring 10 marlas was although awarded in the year 1973, however, while exercising powers as vested under section 48(1) of the Land Acquisition Act, 1894, the same was de-awarded by Government in favour of father of petitioner in the year 1988, therefore, it cannot be acquired now for any public purpose. The learned counsel further submitted that required land for construction of Prime Minister House, by excluding the land in question existed on spot, therefore, impugned notification dated 27-5-2010 to the extent of disputed land be quashed. The learned counsel pressed into service that in case of acquisition of land in dispute petitioner shall become landless, therefore, to meet the ends of justice by considering earlier de-award, impugned notification be set aside. The learned counsel further submitted that the impugned notification was promulgated on 27-5-2010, therefore, due to Rule 7 of the Azad, Jammu and Kashmir Land Acquisition Rules, 1994, after expiry of 6 months period the said notification became unlawful and ineffective, which may be quashed even from this angle.
8. The learned counsel for respondents Ch. Shaukat Aziz, Additional Advocate General, while controverting arguments of the learned counsel for petitioner submitted that disputed land was required for construction of Prime Minister House, therefore, while exercising powers as vested in him under Section 4 of the Land Acquisition Act, 1894, the impugned notification was issued by the Collector, against which, the instant writ petition is- bad in law. The learned counsel vehemently argued that previously, the land was not required for public purpose, therefore, the same was de- notified, however, after devastated earthquake of 2005, the Prime Minister House was proposed to be constructed and land hi question was situated in centre of the proposed land, hence, it was notified for acquisition through the impugned notification dated 27-5-2010. The learned Additional Advocate General, also submitted that earlier de-notification was not embargo in the way of respondents as section 4 of the Land Acquisition Act, 1894, postulated that whenever, any land is needed, the same can be acquired for public purpose. The learned Additional Advocate General in support of his contention referred to and relied upon a case titled Administrator Municipal Committee Kotli and others v. Muhammad Abdullah and 3 others (2001 YLR 3367).
9. -The learned counsel for petitioner, Mr. Abdul Rasheed Abbasi, Advocate, in Writ Petition No,2137 of 2012 moved an application for withdrawal of Writ Petition No, 2137 of 2012 with permission to file afresh one. The learned counsel submitted that as writ petition was yet not admitted for regular hearing and no prejudice was likely to be caused to the other side in case of withdrawal, hence, the same may be allowed. The learned counsel was confronted that what formal defect was in the earlier filed writ petition, he submitted that in fact petition was liable to be filed for issuance of writ of certiorari which was filed for writ of mandamus, hence, the same may be allowed to be withdrawn with permission to file afresh one. The learned counsel was asked that in view of judgments and decrees issued against the petitioner after adjudicating upon, cases on merit by the Civil Court repeatedly, and due to similar earlier writ petition how a fresh writ can be entertained, he submitted that due to new cause of action, fresh writ petition, can be filed. .
10. 'The learned counsel for respondents Ch. Shaukat Aziz, Additional Advocate General, strongly opposed the application and submitted that previously petitioner obtained stay order from this Court on 9-7-2010 and prolonged the case for mala fide reasons to retain her unlawful possession on the land in question, hence, permission be declined for filing a fresh writ petition. The learned Additional Advocate General further submitted that Civil Courts had repeatedly decided cases against petitioner which got finality up to this Court; hence, allowing filing a fresh writ petition would be futile exercise which can further prolong the proposed construction. The learned counsel also submitted that order likely to be implemented to de-award the land in question was reviewed by the Prime Minister, vide notification dated 5-11-2012, hence, all orders, if any, would be deemed as recalled and craved for rejection of withdrawal application and dismissal of writ petition in limine.
11. After hearing the learned counsel for the parties at great length, I have perused the contents of writ petitions, written statement, and comments and also examined the appended documents with my utmost care. The petitioner through Writ Petition No, 591 of 2010, filed on 15-6-2010, solicited annulment of impugned notification dated 27-5-2010, whereby, land bearing survey No,273 measuring 10 marlas situated in village Narrul, along with other land, was declared to be acquired by Government of Azad Jammu and Kashmir for public purpose i,e, for construction of Prime Minister House Narrul, Tehsil and District Muzaffarabad. The claim of petitioner is that, inter alia, the above land was acquired by the Government through award in the year 1973, however, the same was de-awarded in favour of its owner i,e, late father of petitioner, which was again proposed for acquisition in the year 1988, however, in the light of report submitted by Additional Chief Secretary Azad Jammu and Kashmir Government, the said land was dropped from acquisition, hence, now it cannot be acquired third time for construction of Prime Minister House. The sole point, therefore, liable to be resolved in the instant writ petition is that, whether after acquiring land through award and its de-award by the Government in favour of owner, the same can be again acquired for public purpose, while exercising powers as postulated under. The Land Acquisition Act, 1894? Before resolving the above controversial point, it will be appropriate to reproduce Section 4 of the Land Acquisition Act, which reads as follows:- "4 Publication preliminary notification and powers of officers thereupon :-( 1) [whenever it appears to the Collector of the District that the land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.]
(2) Thereupon shall be lawful for any officer, either generally or specially authorized by [Commissioner or Board of Revenue) in this behalf, and for his servants and workmen, ' to enter upon and survey and take levels of any -land in such locality; ' to dig or bore into the subsoil; ' to do all other acts necessary to ascertain whether the land is adapted for such purpose; ' to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; ' to mark such levels boundaries and line by placing marks and cutting trenches; and, Where otherwise the survey cannot be completed and the levels taken and the boundaries and, line marked, to cut down and clear away any part or any standing crop, fence or jungle; ' Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.
[(3) The officers so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the District and such decision shall be final".
' A bare reading of section 4(1) of the Land Acquisition Act, 1894, makes it clear that whenever, it appears to the Collector of the District that the land in any locality is needed or is likely to be needed for any public purpose; the same can be acquired after promulgating notification in the official gazette. It was pleased by the respondents that in the year 1978, the land in dispute was not needed for the public purpose; therefore, the same was de-awarded in favour of father of petitioner. However, after devastated earthquake of 2005, the land was proposed for construction of Prime Minister House Narrul as proved by the respondents through read; hence, the same was needed for construction of a national project. I have given my deep thought to the basic provisions of section 4 of the Land Acquisition Act, 1894 and am of the considered view that term "whenever it appears Collector of the District that the land in any locality is needed or is likely to be needed for any public purpose"/(underlining is mine) makes it clear that if any piece of land was not required earlier, however, later on the same is needed then earlier de-notification will not be an embargo on subsequent acquisition proceedings. The identical point came under consideration before the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Administrator Municipal Committee, Kotli, and another v. Muhammad Abdullah and 3 others (2001 YLR 3367). At page 3371 of the report it was held as under:- "From the survey of the case-law, referred to above, we have reached the conclusion that the respondent it alleged-the mala fides on the part of appellants failed not only to allege the same specifically but also failed to prove the .Same. Thus the notification issued by the Collector Land Acquisition under section 4 of the Land Acquisition Act could not be cancelled by the. Prime Minister by passing an order on the application of respondent that the land may be de-awarded.
In-a case reported as Government of Punjab v. Sikandar Khan and others (PLD 1987 Peshawar 68) it was observed that in acquisition cases notification issued under section 4 of the Land Acquisition Act, could be cancelled only by a notification as contemplated by section .21 of the General Clauses Act,I897 Thus, the three order on the application submitted by the respondent to Prime Minister that the land may be de-awarded is not sufficient in the eye of law to stop the acquisition proceedings initiated by the Collector Land Acquisition".
' The facts of the precedent case, supra, were that land comprising survey Nos.996 and 996-min situated in village Pang-Piran Tehsil Kotli was acquired by the Collector Land Acquisition for construction of District Headquarter Hospital Kotli. On the application of respondent-owner, the Prime Minister of Azad Jammu and Kashmir Government, ordered for de-awarding the said land.
The notification to that effect was also issued on 25-9-1993. When this fact came in the knowledge of Public Works Department, it approached the Government and explained that the land was awarded for construction of District Headquarter Hospital Kotli hence, the notification of de-award was withdrawn on 14-11-1993. The respondent-owner in that case filed writ petition before this court, which was accepted on 24-4-1998 and notification dated 14-11-1993 was declared as unlawful.
Against the above judgment, Chairman Municipal Committee, Kotli, and one Mohammad Mansha, filed an appeal before the apex Court, which was dismissed, however, the esteemed Court observed as follows:-- "After reaching the aforesaid conclusion that the land under dispute had been validly de-awarded the conclusion which follows is that the land could only be acquired through de novo acquisition proceedings as has been held by the High Court".
12. The petitioner did not bother to bring on record the notification pertaining to de-award of the land in dispute. However, a glance perusal of report submitted by Additional Chief Secretary (Development) dated 30-5-1988 makes it clear that award of land in question was not issued in 1973 as stated by petitioner, however, it was issued on 23-12-1978. The land was later on de-notified in favour of father of petitioner in the year, 1984. The respondents initiated de novo proceedings for acquisition of land in dispute. The Collector Muzaffarabad, in this regard had issued notification of acquisition on 27-5-2010. In view of clear provisions of section 4 of the Land Acquisition Act, 1894, duly interpreted by the apex Court of the country in precedent case supra, I am of the view that earlier de-award was not an embargo on de novo acquisition, therefore, I do not find any error in the impugned notification dated 27-5-2010.
13. The contention of the learned counsel for petitioner that the land in dispute was not required for construction of Prime Minister House Narrul is misconceived. The map plan appended with written statement and comments belied the version of petitioner. Even otherwise, whether any land is required for public purpose can only be determined by the Collector while exercising powers vested in him under Section 4 of the Land Acquisition Act, 1894, however, this Court in exercise of writ jurisdiction cannot probe the same. The above point came under consideration before this Court in case of Muhammad Aslam 27 others v. Azad Government of State Jammu Kashmir through Chief Secretary Muzaffarabad and 9 others PLD 2012 HC (AJ&K) 1 = 2012 CLD 675. At pages 11-12 of the precedent case it was held as under:-- "The bare reading of the abovementioned basic provision of statutory law makes it clear that it is prerogative of Collector Land Acquisition to determine as to whether purpose is a public purpose or not. The question of public purpose cannot be determined by this Court in exercise of writ jurisdiction".
' The same view was expressed by the apex Court in case of Administrator Municipal Committee, Kotli, another v. Muhammad Abdullah and 3 others 2001 YLR 3367. At pages 3371, 3372 of the report in was held as follows:-- "Even the question of public purpose cannot be determined by the High Court in exercise of writ jurisdiction because it is always the Collector Land Acquisition who determines under section 4 of the Land Acquisition Act as to whether a purpose is a public purpose or not. In a case reported as Muhammad Ashraf Khan v. Revenue E.A.C. And 7 others (1980 CLC 1504) it was observed that public purpose broadly speaking means any purpose aiming at promotion of general welfare. Whether a purpose amounts to public purpose is a matter for Government and not for the High Court to decide".
14. The contention of the learned counsel for petitioner that in case of allowing the impugned notification dated 27-5-2010, the petitioner shall become landless, therefore, the same may be quashed is also baseless. The petitioner failed to bring on record that she will become C landless in case of acquisition of land in dispute. Be that as it may, acquisition proceedings cannot be stopped on the basis of that ground. The petitioner will be at liberty to purchase land anywhere in Muzaffarabad City in accordance with law as being State Subject of Azad Jammu and Kashmir, in lieu of compensation. However, it has come on record that the land in question is surrounded by residential officers' colony Narrul and Ministers colony Jalalabad which is situated adjacent to main Airport road, Muzaffarabad, hence, has got potential value. The land acquisition proceedings are not a direct transaction between a willing vendor and a willing vendee. It is the will, Choice and selection of the Government Authority or company with regard to a land which stands paramount and the land owners have no right to hinder such will, choice and selection, except to demand the reasonable compensation. The land is also situated in heart of the city, hence, be expected to fetch high price in market. The respondents are, therefore, directed that while acquiring the land in dispute, the potential value of the same shall be considered.
15. The next contention of the learned counsel for petitioner that in respect of land in dispute comprising survey No, 273 measuring 10 marlas notification was issued by the Collector- respondent under section 4 of the Land Acquisition Act, 1894 on 27-5-2010, therefore, on the basis of amended Provision of Rule 7 of the Azad Jammu and Kashmir Land Acquisition Rules, 1994, notification under section 5 of the Act could be issued by the Commissioner within 6 months from the date of publication of notification under section 4 of the Act, which was not done, hence, the impugned notification dated 27-5-2010 has become unlawful and ineffective. It appears from record that acquisition proceedings could not be completed by the respondents as petitioner against the impugned notification dated 27-5-2010 filed the instant writ petition before this Court on 14-6-2010 and obtained stay order on 9-7-2010, therefore, the proceedings of acquisition were kept in abeyance. The period prescribed by Rule 7 of the Land Acquisition Rules, 1994, was never provided to the respondents to complete acquisition proceedings due to ad interim injunction granted by the Court on 9-7-2010 which continuously exists in field even today, therefore, above ground is not available to petitioner for annulment of the impugned notification dated 27-5-2010.
16. The learned counsel for petitioner, Mr. Abdul Rasheed Abbasi, Advocate appeared in Writ Petition No,2137 of 2012 and moved an application for withdrawal of the same with permission to file fresh one on 23-11-2012. The application was seriously opposed by the learned Additional Advocate General. The provisions with regard to withdrawal are postulated under Order XXIII Rule 1 of Civil Procedure Code, which are reproduced as under:- "(I) Withdrawal of suit or band torment of part of claim-(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants withdraw his suit 'or abandon part of his claim.
(2) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award any shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others".
17. A bare reading of the above-mentioned statutory law makes it clear that a suit can be withdrawn on the ground of any formal defect or other sufficient grounds. No formal defect was pointed out in the writ petition already filed on behalf of petitioner. Before allowing withdrawal application, satisfaction of the Court regarding formal defect or other sufficient grounds is necessary. The writ petition was filed by petitioner along with all necessary facts with plethora of documents. The learned counsel for the petitioner could not satisfy that how writ of certiorari, instead of mandamus was liable to be filed, therefore, withdrawal application with permission to file fresh one has got no substance for the following reasons:--
(I) A suit bearing No, 232/97 titled Mst. Mustafa Begum v. Azad Government and others was filed by mother of petitioner, before Civil Judge Muzaffarabad, on 25-1-1997, whereby, award issued in favour of respondents pertaining to disputed land was challenged which was dismissed on merit vide judgment and decree dated 15-5-2004. Against the above judgment and decree no appeal was filed, therefore, the same got finality under law.
(II) After passing more than three and half years again another Suit No,777 of 2007 titled Mst.
Mustafa Begum v. Azad Government and others was filed, regarding the same land for the same relief, before Senior Civil Judge, Muzaffarabad, on 28-11-2007. The learned Senior Civil Judge on the ground of principle of res judicata rejected the plaint; vide order dated 19-5-2009. It appears that meanwhile mother of petitioner died, hence, an appeal titled Sajida Maqsood and 8 others v. Azad Government and 4 others was filed before Additional District Judge, Muzaffarabad, which was dismissed; vide judgment and decree dated 29-6-2010. Against the above mentioned judgment and decree Civil Appeal No,71 of 2009 was filed before this Court, which was dismissed as withdrawn, vide order dated 1-11-2012. After finalizing, dispute regarding suit land in second round up to this Court, the same cannot be re-opened through even fresh writ petition.
(III) As matter after adjudication on merit was already finalized, therefore, permission to file fresh writ petition will be futile exercise, which will frustrate the judgments and decrees already obtained finality under law.
(IV) Withdrawal with permission to file fresh writ petition would deprive the Government and public functionaries to carry on national project pertaining to construction of Prime Minister House Narrul, which would defeat the ends of justice and statutory law of the land.
(V) The petitioner has moved- withdrawal application with permission to file fresh one for mala fide reasons to retain her unlawful possession on the land in question and to stop the Court from passing any order.
(VI) The application for withdrawal with permission to file fresh one was not moved with clean hands.
(VII) The contention of the learned counsel for petitioner that writ of certiorari was liable to be filed and not for mandamus is also misconceived. From the bundle of facts enlisted in writ petition, I do not find that writ of certiorari was liable to be filed on the basis of peculiar facts of the case. Even there is no any fresh cause of action as urged on behalf of petitioner.
(VIII) The disputed land was awarded in favour of respondents on 23-12-1978. The possession of petitioner on the said land after award supra is unlawful therefore; no any relief can be extended to petitioner even in fresh writ petition.
18. As observed earlier, withdrawal with permission to file fresh cannot be claimed as a matter of right. For this purpose satisfaction of court regarding formal defect or other sufficient grounds is mandatory. An identical point came under consideration before the Hon'ble Supreme Court of Pakistan in case titled Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others (PLD 2003 SC 979). At page 991 of the report it was held as under:-- "It was further held in the above case that the withdrawal. Would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal".
' An identical view was expressed by the apex Court of Pakistan in case of Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others (2001 SCM R 148). At page 154 of the precedent case it was held as follows:- "As far as instant case is concerned if it is looked keeping in view the above discussion, it would abundantly be clear that so far the ground mentioned in the application under Order XXIII, Rule 1, sub-Rule (2), C. P. C. That the suit property has been gifted by respondent No, 1 to their mother Mst.
Hassan Taj (late) etc. Is concerned it cannot be treated to be an apparent lackeness in formation/ arranging the suit in order to invoke the provisions of clause (a), sub-rule ,(2) of Rule 1 of Order XXIII, C.P. C. As this effect is substantial orlatent in its nature and touches the merits of the case, therefore, for such reason permission to withdraw the suit was unwarranted.' was unwarranted."
' The point also came under consideration before, Lahore High Court, Lahore, in case of Salma Khalil and 3 others v. Rashida Siddiquee and another (2000 CLC 260). At page 262 of the report it was held as under:-- "I have considered the submissions made by the learned counsel for the parties. I have noticed that while granting permission to respondent No, 1 to file a fresh suit the learned first appellate Court did not specify the formal defect and permission was granted to respondent No,1 to file a fresh suit for declaration. The contention of the learned counsel for the respondents that in the first suit a formal declaration as to the easement rights was not claimed which according to him amounted to a formal defect has no merit either. It is the substance rather than the form, which should be looked into to determine the nature of relief claimed by a plaintiff in a suit. In para 4 of the plaint the respondents had clearly pleaded easement rights on account of prescription.
Further, the suit was filed in 1992 and was decided on 8-12-1996 after parties had led the entire evidence and the merits of the claims of the parties were duly considered and adjudicated, the respondents could not, therefore, be permitted to take another chance in the form of a declaratory suit".
19. A perusal of subsequent writ petition further reveals that the same was filed by petitioner for implementation of orders of the Prime Minister of Azad Jammu and Kashmir Government dated 21- 4-2008, 20-3-2009, 14-4-2009, 24-9-2009 and 2-11-2012, respectively. The respondent's appended notification dated 5-11-2012 with comments from which it reveals that order dated 25-9-2009 was recalled by the Prime. The petitioner appended Photostat copies of application along with orders allegedly passed by the Prime Minister. As the Photostat copies are not admissible under law, therefore, no relief can be granted to petitioner on the basis of so called orders of the Prime Minister. The point pertaining to admissibility of Photostat copies was considered by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case of Mohammad Ashfaq Khan and 2 others v.
AJ&K Government and others (2003 SCR 260. At page 263 of the report it was held as under:-- "According to D.P.I. Colleges, one post of D.P.E. In male cadre was already vacant. In the same way 8 posts of D.P.E. In female cadre were vacant. In the light of these facts the requisition of 15 posts in male and female cadre (7 male and 8 female) was sent to the Public Service Commission on 8- 12-1999. All these posts were advertised by the Public Service Commission on 22-12-1999 and after conducting the test and interview of different candidates six male candidates were recommended against the vacant posts of D.P.E. Against the quota of districts Poonch, Bagh, Muzaffarabad, Kotli, Bhimber and refugees settled in Pakistan, whereas one female candidate was also recommended for her appointment against female cadre. He has placed on record the orders of such candidates which we have mentioned in the earlier part of this judgment in detail.
According to the D. P.1. Colleges, in the light of the recommendations made by the Public Service Commission one more post was filled in which had fallen vacant after 8-12-1999. The present appellant and some other candidates are serving as D.P.E. Against the remaining seven posts of female cadre and are posted in different colleges. Under the High Court Procedure Rules, 1984, the appellants were bound to furnish the attested copies of record upon which the reliance was placed by them with their writ petition, whereas Photostat copies were provided by them in the High Court, therefore, their writ petition was not maintainable. However, this aspect of the case remained unattended. Before this Court the appellants again appended with the petition for leave to appeal the Photostat copies which have been attested by one Amir Hussain Shah, Headmaster Government High School Devi Gali. These copies have not been obtained in accordance with law nor any explanation has been furnished that where original documents have been left after preparing the Photostat copies; because Photostat copies, as we all know, are prepared through mechanical process, therefore, without the original record, the same cannot be relied in evidence particularly when these have not been obtained from the person who is supposed to be in possession of the original record".
' The same point was considered by the Karachi High Court in case titled Messrs Oriental Shipping Co. Ltd., Karachi v. Panaghia Odigitria and 2 others (1991 M LD 148). At page 151 it was held as follows:- "Since all these issues are interconnected, I propose to discuss all of them together. The burden to prove that the plaintiff incurred the expenses as detailed in the plaint and supplied the material shown therein was on the plaintiff himself, as the defendants had denied the same. The original bills and vouchers have not been produced. Instead, the photocopies of bills and vouchers were produced. The plaintiff's witness Habib-urRehman has alleged that the original documents were handed over to his Advocate Mr. K.A. Ghani who produced only Photostat copies thereof in the Court, whereas the originals were not produced. The plaintiff has neither alleged that these documents were lost by his Advocate, nor has he examined him or his clerk. He has also not claimed that these originals were produced in the Court and lost by any clerk. Thus it would appear that there is 'no satisfactory evidence of the loss of the originals. The defendants had denied/challenged the Photostat copies produced by the plaintiff. As such these Photostat copies cannot be relied upon."
20. Even otherwise as order dated 25-9-2009 regarding de-award of land in dispute was recalled by the Prime Minister of Azad Jammu and Kashmir Government vide notification dated 25-11-2012, therefore, all other orders, if any, will be deemed as cancelled' by implication.
21. The land in dispute was awarded in favour of respondents in the year 1978, which could not be cancelled by the Prime Minister on the I applications of petitioner by passing orders that the land may be de-awarded. The petitioner relied upon orders dated 21-4-2008, 20-3-2009, 14-4-2009, and 2-11-2012 which were allegedly passed by the Prime Minister on the applications while award could only be de-awarded through a duly promulgated notification as postulated by General Clauses Act, 1897, hence, petitioner is not entitled for any relief even from this angle. This view is fortified by rule of law laid down by the apex Court in case of Administrator Municipal Committee Kotli and others v. Muhammad Abdullah and 3 others 2001 YLR 3367.
22. The crux of above discussion is that finding no substance in Writ Petition No, 591 of 2010, the same is hereby dismissed with costs. The application for withdrawal with permission to file fresh one, moved in Writ Petition No,2137 of 2012 is not maintainable, therefore, it is hereby rejected and writ petition is dismissed in limine. Consequently, status quo orders issued in favour of petitioner on 9-7-2010 and 5-11-2012 are hereby recalled.