RAJA SAEED AKRAM KHAN, C.J. The petitioners by filing writ petition before the High Court challenged the notifications dated 09.04.2012 and 13.04.2012, mainly on the ground that the same have been issued contrary to the judgment of this Court dated 12.01.2011, passed in the case titled Raja Iftikhar Ayub v. AJK Government and others (Civil Appeal No.31 of 2010) and sought direction for retaining the site already selected by the site selection committee in the year 2008, for construction of Women University, Bagh. The learned High Court dismissed the writ petition vide impugned judgment dated 01.01.2021, which has been assailed before this Court through titled petition for leave to appeal. The learned High Court has passed the impugned judgment on remand of the case by this Court through judgment dated 14.12.2020. The petitioners have filed the titled review petition against the judgment of this Court through which the case was remanded to the High Court. In view of the background of the case, the controversy involved in both the petition for leave to appeal and review petition is common and fate of both the petitions are interlinked, therefore, the same are being decided through the proposed consolidated judgment/order.
2. Sardar Abdul Raziq Khan, Advocate, the learned counsel for the petitioners in support of review petition argued that this Court without providing an opportunity of hearing to the petitioners accepted the appeals filed by the other side and remanded the case to the High Court which is against the settled norms of justice. He submitted that at the time of hearing of appeal, on an objection raised by the petitioners counsel that one of the members of the bench seized with the matter, i.e. Mr. Justice Ghulam Mustafa Mughal, being author of judgment of the High Court, in the present controversy is unable to sit in the bench and hear the case, the case was postponed while observing in the open Court that the Court shall decide this objection at first but instead of passing any appropriate order on the said objection the case was remanded to the High Court through judgment under review. He also contended that despite the direction issued by this Court it was being tried by the respondents to change the site for construction of University, whereupon, the petitioners filed writ petition before the High Court which was accepted and against the judgment of the High Court the respondents could not file appeal as in the early round of litigation, they had given the undertaking that the site shall not be changed. Thus, the appeal filed by the respondents before this Court was hit by the principle of estoppel and liable to be dismissed but this important aspect has been overlooked by this Court while accepting the appeal and remanding the case to the High Court. In such state of affairs, grave injustice has been done; therefore, the impugned judgment liable to be reviewed.
In support of petition for leave to appeal the learned counsel argued that the impugned judgment of the High Court is against law and the facts of the case. He added that this Court in the judgment dated 12.01.2011, delivered in the case titled Raja Iftikhar Ayub v. AJK Government and others (Civil Appeal No.31 of 2010), quashed the formation of new site selection committee and held that the recommendations of previous site selection committee shall remain intact, but the learned High Court contrary to the judgment of the apex Court decided the matter, hence, the impugned judgment being contemptuous, against the Constitutional provisions, is liable to be set aside. He maintained that the learned High Court reproduced the findings recorded by this Court in a contempt matter and failed to adhere to the fact that the judgment passed in an appeal by this Court is binding in nature which cannot be altered or modified in contempt matter rather the same can only be altered or modified in the review jurisdiction. He further contended that in the contempt matter substantial rights of the parties cannot be determined; therefore, the learned High Court was not justified to decline the right, which had accrued to the petitioners by the judgment passed in an appeal, on the strength of any findings recorded by this Court in the contempt matter. He forcefully contended that in the case (supra), the Government had accepted the recommendations of previous site selection committee while giving the undertaking that no deviation from the same shall be made, therefore, now in view of the provisions of Article 114 of Qanun-e-Shahadat, 1984, the Government cannot be turned around. The learned counsel referred to and relied upon the case law reported as Lever Brothers Pakistan Ltd. and another v.
Government of Punjab through Secretary, Health Department, Civil Secretariat, Lahore and 3 others [PLD 2000 Lah. 1], Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others [2009 SCMR 412], Vice-Chancellor, University of Azad Jammu and Kashmir, Muzaffarabad and 3 others v. Muhammad Shahzad Khalid [PLD 2001 SC (AJ&K) 21], Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others [2008 SCMR 1702], Syed Fida-ur-Rehman Shah and others v. Syed Moti-ur-Rehman Shah and others [2020 CLC 1058], Sher Alam and others v. Muhammad Haroon Khan and others [2020 MLD 514] and Muhammad Yaqoob v. Mst. Sardaran Bun and others [PLD 2020 SC 338].
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the respondents argued that the petitioners by accepting the judgment under review appeared before the High Court and filed written arguments and thereafter filed review petition which is not competent. Even otherwise, through the judgment under review the case was remanded to the High Court and the learned High Court in the light of the direction issued by this Court has decided, the case, therefore, this review petition has become infructuous and liable to be dismissed.
To rebut the arguments advanced by the learned counsel for the petitioners in support of petition for leave to appeal, the learned counsel for the respondents submitted that the impugned judgment of the High Court is quite in accordance with law and interference by this Court is no more required. He drew the attention of the Court towards the judgment of this Court dated 14.01.2015, whereby the contempt application filed by the petitioners, herein, was disposed of and submitted that with the consent of the parties the contempt application was disposed of in the terms that the consultant deputed for determining the technical suitability of the site shall also consider the site previously recommended by the site selection committee along with other sites and when the consultant after visiting different sites recommended the site, other than the site previously recommended, the petitioners filed writ petition for implementation of the judgment of this Court dated 12.01.2011, whereas, after agreement arrived at in contempt proceedings they cannot claim as such. He also pointed out that Women University Bagh Act was passed in the year 2014 and thereafter the process has been initiated for construction of university in the light of the provisions of said Act, therefore, the petitioners claim that the respondents are bound to act in accordance with the undertaking given in the year 2011, is not of worth consideration.
Raja Asif Bashir, Advocate, one of the learned counsel for the respondents while adopting the arguments advanced by Raja Muhammad Hanif Khan, Advocate, further added that in pursuance of the report of consultant the land measuring more than 2000 kanal has been allotted for construction of Women University Bagh and a block has also been constructed over the said land.
The matter is being delayed due to present litigation; it is a project of National interest and the petitioners just for their own benefits are trying to sabotage the same, hence, the instant petition for leave to appeal as well as review petition may kindly be dismissed.
4. We have given our anxious thought to the arguments advanced on either side and have also perused the record and considered the case law referred to by the learned counsel for the petitioners. So far as, the review petition is concerned, the perusal of the record shows that through the judgment under review this Court remanded the case to the High Court only on the ground that the learned High Court decided the writ petition without hearing the learned counsel for the respondents. Admittedly, on remand, the petitioners appeared before the High Court and filed written arguments on 28.12.2020 and thereafter on 13.01.2021 filed the review petition against the remand order. It is also an admitted position that the learned High Court in compliance of the direction issued by this Court in the judgment under review has decided the writ petition filed by the petitioners and the petitioners have challenged the judgment of the High Court by filing petition for leave to appeal (supra) before this Court; hence, in such state of affairs, we agree with the stance taken by the learned counsel for the respondents that review petition has become infructuous. As this Court in the judgment under review has not considered/discussed the merits/demerits of the case and remanded the matter just to ensure the compliance of the mandatory requirement of law that no one can be condemned unheard; therefore, even on merits the review petition has no weight. The argument advanced by the learned counsel for the petitioners in support of review petition that one of the members of division bench, who passed the judgment under review, could not sit in the bench being author of a judgment passed in the same matter in the High Court, has already been considered and resolved by this Court in paragraph 5 of the judgment under review. In the judgment under review, it has been mentioned that at the end of the day, all the learned counsel for the respondents agreed that the appellants have not been provided with an opportunity of being heard, hence, they have no objection in remand of the case.
In view of these findings the review petition is also hit by the principle of estoppel.
5. The crux of the arguments of the learned counsel for the petitioners, advanced at Bar in support of petition for leave to appeal, is that the in view of the Constitutional provisions the judgment of this Court is binding in nature on all the Courts/organs of the State. The matter of selection of site for construction of Women University Bagh had been finalized in the light of the judgment of this Court delivered in the case titled Raja Iftikhar Ayub v. AJK Government and others (Civil Appeal No.31 of 2010 decided on 12.01.2011); the petitioners filed writ petition for implementation of the said judgment, whereas, the learned High Court instead of issuing the writ passed the impugned judgment totally in conflict with the judgment of this Court. Although, for the implementation of the judgment of this Court the proper course was to approach this Court by filing an application for initiating contempt of Court proceedings, against the authorities who failed to implement the judgment, and the writ before the High Court was not competent, however, as many other points have also been raised in the memo of petition for leave to appeal and during the course of hearing the arguments, therefore, to decide the case on merits we deeply scrutinized the available record.
It postulates from the perusal of the record that initially the petitioners filed writ petition before the High Court and sought direction for not changing the site of the University, already recommended by the site selection committee, the learned High Court dismissed the writ petition in limine and on appeal the other side took the stance that the matter shall be processed in the light of the recommendation of previous site selection committee, whereupon, the formation of new site selection committee was quashed and the relevant quarters were directed to complete the process of construction of University as soon as possible so that the project of National interest be completed within time. Meaning thereby that in the first round of litigation, the case was not decided by this Court on merits rather the same was decided on the admission of the opponent side. The relevant findings recorded in the referred judgment by this Court are reproduced hereinunder:- "5. As the main controversy between the parties stands resolved and both the parties are now in agreement that the land selected by the previous committee shall be kept intact and further proceedings shall be taken on the basis of recommendations of the said committee we propose to dispose of the appeal without further delay."
The record further speaks that after the aforesaid judgment much development has been accrued in the case as the petitioners filed contempt application before this Court, claiming therein, that the respondents are violating the judgment of the Court as they are trying to shift the University at any other place against the recommendations of site selection committee; however, at the time of hearing the arguments in the contempt matter, they accepted a proposal of the other party and the contempt application was disposed of with the consent of the petitioners, herein, in the following terms:- "When the university authorities have started process for determining technical suitability of the site through the consultant of the Higher Education Commission including the site which the site selection committee constituted on 22.08.2008, recommended in its report dated 16.09.2008 the applicants are also satisfied from the process".
The learned counsel for the petitioners has rightly stated that judgment passed in an appeal cannot be altered or modified in the contempt matter but in the present case the situation is quite different. In the first round of litigation the appeal was not decided by the Court on merits rather the same was disposed of on the agreement of the parties and the same parties subsequently in contempt matter agreed on the terms other than the one made in the appeal; thus, the argument although, logical but not applicable here in view of the peculiar facts of the present case. It is also revealed from the available record that at the site recommended by the site selection committee the land measuring 300 kanal was made available; whereas, during the process keeping in view the requirements of the university the land more than 2000 kanal has been allotted after determining the feasibility, moreover, at the spot huge funds have been expended. it is also an admitted position that Women University Bagh Act, 2014 was passed much after the pronouncement of the judgment of this Court dated 12.01.2011, delivered in the light of the agreement of the parties, and thereafter in the light of the provisions of the Act many authorities have been changed. This Court in the judgment delivered in the contempt matter while keeping in mind this position has mentioned that at the time when the Government constituted a committee for site selection, Women University Bagh Act, was not in existence and later on, the Act was passed and the Senate in its meeting requested the Higher. Education Commission of Pakistan to depute a consultant for determining the technical suitability of the site for permanent campus of the university including the one already recommended by the site selection committee on 16.09.2008.
From the judgment passed in the contempt matter it is clear that the petitioners were agreed on the determination of the suitability of different sites by the consultant of Higher Education Commission of Pakistan, therefore, after determining the suitability by the consultant/experts they cannot raise any objection. The learned counsel for the petitioners argued that the appeal filed by the respondents in the previous round of litigation before this Court was hit by the principle of estoppel as in the first round of litigation, they had given an undertaking that the site shall not be changed and later on, they could not turn around. We do not agree with this argument as after giving the consent by the petitioners for determination of the suitability of the site by the consultant/expert they cannot refuse to accept his proficient opinion. In the present matter the principle of estoppel against estoppel is applicable and in such a situation the legal precedents provide the guidelines in the term that in the case of one estoppel against another, the parties are set free and the Court has to decide what their original rights are; or the latter estoppel should prevail. Thus, after subsequent agreement arrived at between the parties in the contempt matter the plea of attraction of principle of estoppel on the strength of previous agreement is no more available to the petitioners. We also deem it proper to mention here that determining the feasibility of a site for construction of a building is the job of the experts and neither the High Court in the jurisdiction nor this Court in appeal could determine the same, as many factors are involved in such matters i.e, availability of acreage of land required for the purpose, master planning, soil testing, geological survey etc. which must be carried out by the concerned quarters according to relevant code. However, if the experts/relevant persons, after considering all the factors declare any site suitable and thereafter anyone try to shift the project on political basis/personal interest then the Courts can intervene; whereas, no such eventuality is available in the present case.
6. After examining the record, we are satisfied that the learned High Court has not committed any illegality while dismissing the writ petition and no valid point for grant of leave is available in the present case.
7. For the reasons recorded above, the titled review petition as well as petition for leave to appeal was dismissed through short order dated 04.08.2021, with no order as to costs.
Before parting with the judgment, we would like to observe here that it is a project of National interest which should be completed within stipulated period. The authorities are directed to take all the necessary measures to ensure the completion of the project within targeted time and avoid any sort of delay on one or the other pretext. It is further directed that the concerned authorities shall submit the progress report quarterly before this Court.