The petitioners were engaged by respondents No.6 & 7, who obtained leases for the mining of limestone of Block 11-E, situated near Hassanabdal District Attock, for the purpose of selling the mined and extracted limestone. For the said purpose the petitioners installed crush machines and made arrangements for the transportation of the already mined and excavated material, against valuable consideration. The leases of respondents No.6 & 7 were ultimately expired in pursuance whereof they applied for the extension to the respondents' department but of no avail. The respondent No.5 then stopped the petitioners from removing the already mined and extracted limestone and feeling aggrieved the petitioners filed the instant petition.
2. While resisting this petition learned Law Officer as well as learned counsel for respondent No.6 raised certain preliminary objections with regard to the maintainability of this petition. They sought dismissal of the petition firstly on the ground that there is civil suit pending on the same subject matter filed by the petitioners and secondly Writ Petition No.50007 of 2022 filed by the petitioners was previously dismissed as withdrawn.
3. Learned counsel for the petitioners while addressing the above question submitted that mere withdrawal of previous petition is not a bar in filing the subsequent petition. He added that there is no hurdle in the way of the petitioners to canvass their grievance through instant petition. He, however, has no answer with regard to filing and pendency of civil suit by the petitioners on the same cause.
4. After having heard learned counsel for the parties, I have perused the record.
5. It is an admitted fact that initially the petitioners filed Writ Petition No.50007 of 2022 before the learned Principal Seat of this Court at Lahore with regard to the same cause. The constitutional petition was though withdrawn by way of order dated 26th August, 2022 but the observations recorded in the said order are very relevant and pertinent for the case in hand which is reproduced below for ready reference and convenience :- "Though the present constitutional petition, prayer has been made on behalf of the petitioners that in terms of Rule 183 of the Punjab Mining Concession Rules, 2002, the petitioners are not seeking any extension in lease but for lifting already excavated material. The case was fixed for today in the light of said submission made at limine stage and pursuant to the notices issued, Usman Umar, Assistant Director (Mines), Lahore, has tendered appearance alongwith learned Law Officer and placed on record interim report. On the strength of the said report, learned Law Officer states that the petitioners are not the lessees of the Government. Adds that the petitioners filed an application which was entertained and probe was made whereupon it transpired that they are excavating limestone illegally for which FIRs have also been registered against petitioner No.2 and few others.
When confronted, learned counsel for the petitioners seeks permission to withdraw the instant petition.
2. Be that as it may, the respondents being custodian of the national resources may proceed against culprits in accordance with law.
3. Dismissed as withdrawn."
(Underlining supplied for emphasis)
It is manifestly clear from the above that the first petition was not withdrawn in ordinary course rather after being confronted with certain legal infirmities, the petitioners having no other option, sought permission to withdraw the petition and as such it was dismissed.
6. Law is well settled that proceedings in a constitutional petition are to be regulated by the Code of Civil Procedure (V of 1908). Order XXIII of the Code ibid mutatis mutandis applies to such proceedings. Order XXIII Rule 1 is relevant for the matter in hand, which is reproduced below:- "1. Withdrawal of suit or abandonment 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 after recording reasons-
(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 and 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."
(Underlining supplied for emphasis)
Since the previous petition on the same cause was dismissed as withdrawn so the petitioners are now precluded to file the instant petition in terms of sub-rule (3) ibid. Reference in this regard can be made to JAVAID IQBAL ABBASI & COMPANY versus PROVINCE OF PUNJAB and 6 others (1996 SCMR 1433).
7. Leaving aside above aspect, it is observed that a person seeking indulgence of this Court in constitutional jurisdiction is supposed to approach the Court with clean hands. It is expected from such person that on the basis of principle of equity, he will not conceal any material fact from the court but the position here is totally different. The petitioners have though instituted a civil suit for declaration and injunction before the learned Senior Civil Judge, Lahore where the matter is sub- judice but they have purposely concealed this material fact while filing the present petition. It is quite strange that in the first instance they opted to approach the Principal Seat of this Court at Lahore but in short span of time after withdrawal of their first writ petition, they approached this Court in a very dubious manner and even without appending the copy of the order. Concealment of material fact from the court not only tantamount to thwart but to hoodwink the process of law, which cannot be allowed in any eventuality. It is high time to curb such tendency on the part of litigants. The constitutional jurisdiction is a discretionary relief, which depends upon the satisfaction of the Court. The petitioners since have not come with true facts and instead withheld necessary information on extraneous reasons, so they do not deserve any equitable relief. Concealment of material fact from the Court contemplates serious consequences. The petitioners cannot pick the forum of their own choice in order to get a relief in their favour, thus circumventing the ordinary jurisdiction of the Court at the whims of a party would mean to obstruct the normal process of law and to show a distrust on the working of Sub-ordinate Courts, which is never the object of law. It can be held without any hesitation that the petitioners were obliged to disclose the pendency of litigation, while filing the instant petition. It appears that the disclosure about the pendency of suit was purposely withheld which sole circumstance is sufficient to disentitle the petitioners from claiming the discretionary relief in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. This Court in the case of MUHAMMAD AMIR versus UMER HAYAT and 5 others (2010 CLC 1798), while dealing with the issue in hand held as under:- "3. Without dilating upon the merits and demerits of the case it is pointed out that prior to filing of this writ petition for setting aside the orders dated 21-10-2009, 12-5-2008, 29-12-2006 and 26-2- 2003 respectively the petitioner Muhammad Ameer filed a civil suit on 18-11-2009 in the court of learned Senior Civil Judge, Sahiwal assailing the same orders which are assailed in this writ petition. Muhammad Ameer petitioner did not disclose in this writ petition the filing of the same which is serious concealment of facts. Relief under Article 199 of Constitution of Islamic Republic of Pakistan 1973 is always a discretionary relief. The petitioner should approach this court with clean hands. This material concealment of facts not disclosing the filing of civil suit before the learned Senior Civil Judge, Sahiwal by the petitioner is sufficient ground for refusing the relief sought for in this writ petition. The petitioner cannot avail two remedies simultaneously. He is bound to choose either to avail the remedy of filing civil suit or filing this writ petition. At a time petitioner has availed both the remedies.
4. In "Muhammad Anwar and another v. Government of Sindh through Secretary, Home Department and 2 others" 1986 MLD 1440 (D.B) Karachi, it is held that:-- "Proper course---Title of car in dispute being subject-matter of civil suit pending adjudication in civil court proper course for custody of such car, held, would be to move application in that respect to concerned civil court".
5. In another case "Muhammad Anwar v. Municipal Corporation, Faisalabad and others" 1993 CLC 1851 Lahore, it is held that:-- "Since the petitioner has already taken recourse to the remedy of civil suits which in the facts and circumstances of the case could be said to be not adequate or efficacious, he is not entitled to agitate the same dispute in constitutional jurisdiction. The petition was dismissed but with no order as to costs":
6. In "Haji Dossas Limited and others v. The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another" 1986 CLC 1193 D.B it is held that:-- "(N) Civil Suit pending in respect of matter referred to in constitutional petition, effect---where suit in respect of same cause of action as referred to in constitutional petition, was pending, High Court held would not take up such matter in constitutional jurisdiction".
7. In "Saleem Akhtar v. Province of Punjab" 1994 CLC Lah. 2290, it is held that: "Dispute between parties relating to title to immovable property---Constitutional petition--- Maintainability---Suit relating to disputes about title was pending adjudication in Civil Court---Suit being appropriate remedy for settlement of title disputes relating to immovable property between parties, remedy under Constitutional jurisdiction was not available in such cases except when violation of some statutory duty on the part of statutory functionary was alleged---High Court could not allow its Constitutional jurisdiction to be used for deciding title disputes relating to immovable property for which remedies under general law were available---Constitutional jurisdiction was not intended to substitute ordinary remedies by way of suit available to party--- Constitutional jurisdiction being special and extraordinary should not be exercised in ordinary cases-Constitutional jurisdiction was not maintainable in circumstances".
8. I fully concur with the dictum laid down in the above referred cases when suit is pending on the subject of lis the same cannot be assailed in the writ jurisdiction. In the instant case orders passed by District Officer (Revenue) and Member, Board of Revenue were assailed earlier in civil suit pending before the competent civil court subsequently during the pendency of civil suit writ petition is filed which in the light of dictum laid down in cases supra cannot proceed."
The above principles were reiterated by this Court in the cases of NOOR AVENUE COOPERATIVE HOUSING SOCIETY, HANJARWAL, LAHORE through President versus LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A., Lahore and 3 others (2008 CLC 200) and NADIR ALI versus SECRETARY, REGIONAL TRANSPORT AUTHORITY, FAISALABAD and another (PLD 2006 Lahore 298). Reference in this respect can also be made to Mian MUHAMMAD YOUSAF and another versus LAHORE DEVELOPMENT AUTHORITY through Director General, L.D.A. Plaza, Lahore and 5 others (PLD 2001 Supreme Court 393).
8. It is though an oft repeated principle that constitutional jurisdiction though cannot be abridged by a subservient legislation but exercise of constitutional jurisdiction in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is always dependent upon the facts and circumstances of each case. This Court is cognizant of the fact that now a days such a tendency on the part of litigants is increasing day by day that they instead of prosecuting their cause before the competent forum opt to invoke the constitutional jurisdiction of this Court without any justifiable reason, which on the one hand results in burdening the court with unnecessary work and on the other absolves the respective functionaries or authorities from their statutory duty. The constitutional jurisdiction is always discretionary with the court and the person(s) approaching for the said purpose has/have to establish(s) the negation of his/their vested rights. Furthermore the constitutional mandate is not unbridled and this Court is precluded to exercise the constitutional jurisdiction in an omnibus fashion.
9. In view of above this petition at the face of it is not only frivolous but also vexatious and as such it is dismissed in limine with costs of Rs.1,00,000/-, which shall be deposited with the Deputy Registrar (Judicial) of this Court within thirty days, failing which the same shall be recovered from the petitioners in equal share as arrears of land revenue in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.