1. GHULAM RASOOL K. SHAIKH, J.-This constitutional petition has been filed to challenge the order of the Additional Commissioner (respondent No. 1) passed in appeal filed by the respondent No. 4.
2. A plot measuring 326 sq. Yds. Is situated at Police Chauki Street Sheet R. C. 4, Karachi. The temporary lease of this plot was granted to late Mr. Mohammad Hanif Gazdar father of the present petitioner by the Municipal Corporation (respondent No. 3) by Standing Committee Resolution No. 805, dated 13-10-1947. According to the petitioner the lease was granted for the construction of cheap houses. Consequently houses were constructed and given on rent to five persons. One of them sublet the tenement to respondent- No. 4 but the father of the petitioner did not recognise the sub-tenancy. On 16th March 1967 the petitioner applied to the Municipal Corporation for the grant of permanent lease for a period of 99 years on reasonable market rate. The respondent No. 4 having learnt about this request, made an application for the grant of lease of the plot measuring 98 sq. Yds. Which was in his possession. The Land Manager, Karachi Municipal Corporation summoned the contesting parties on 2-8-67 and heard them. However, the Finance Sub- Committee after considering the claims of the contesting parties resolved by Resolution No. 194, dated 9-9-67 to grant the lease of the entire plot for 99 years to the petitioner. It is further stated in the petition that an area of 55 sq. Yds. Out of 98 sq. Yds. In possession of respondent No. 4 was taken away as the same was required for road widening scheme. So there remained an area of 265 sq. Yds. Which was resolved to be granted to the petitioner. In the meeting of the Municipal Corpo--ration a Resolution No. 553, dated 28-11-67 was passed accepting the recommendation of the sub-committee subject to the approval of the Commissioner of Karachi, who was the Controlling Authority under West Pakistan Municipal Administration Ordinance, 1960. Aggrieved by this resolution the respondent No. 4 filed an appeal before the Commissioner of Karachi who forwarded it to the Additional Commissioner for disposal. The appeal was fixed before the Additional Commissioner on 3-6-68 and an objection to the jurisdiction of the Additional Com-- missioner was raised on behalf of the petitioner. The Additional Commissioner without deciding the objection disposed of the appeal on merits accepting the appeal, and ordering the transfer of the disputed tenement to respondent No. 4. Consequently the present writ petition was filed.
3. A report was called from the Additional Commissioner. In this report the Additional Commissioner after referring to the provisions of section 119 in respect of appeals against the orders passed by the Municipal Committee or its Chairman or Vice-Chairman pointed out that the original rules known as West Pakistan Municipal Committee (Appeals) Rules, 1960 described the appellate authority to be the Controlling Authority as shown in column 2 of the Schedule to rule 2, but later by notification published in the Gazette of West Pakistan, Part I, dated 8-1-63 the appeal rules were amended whereby ;rule 6 was added which. Provided for the transfer of appeals by the Commissioner to the Additional Commissioner. The Schedule was also accordingly amended substituting the word `Commis--sioner' in place of 'Controlling, Authority' go the appeal which was received by transfer from the Commissioner was disposed of by him as in view of the amended appeal rules he was competent to do so. It may be mentioned here that although in the petition it was pleaded that objection to the jurisdiction was raised on behalf of the petitioner and it was not disposed of by the Additional Commissioner but the Additional Commissioner in his comments did not specifically deny this fact.
4. The respondent No. 4 also contested the petition and filed a counter-affidavit. It was inter alia pleaded that the Additional Commissioner had passed the impugned order on the basis of the terms of the agreement of the parties including the petitioner. In this affidavit the relevant portion of the impugned order was reproduced and it reads as under :- "The learned counsel for the appellant, respondent No. 2 and also the Municipal Corporation agreed that as far as possible the Resolution of the Corporation should be maintained. But the 43 sq. Yds. Of land as recommended by the Land Manager, Karachi Municipal Corporation should be leased out to the appellant on the same terms and conditions as granted (leased) to respondent No. 2. I accept this agreement or compromise, and order that the Resolution be amended as above, I e. 43 sq. Yds. Of land in possession of the appellant be granted to him on the same terms and conditions as to the respondent No. 2."
5. It was, therefore, pleaded by the respondent No. 4 that the petitioner was estopped to challenge the order of the Additional Commissioner and was disentitled to the grant of relief under Article 98 of the Constitution of Pakistan. It was further pleaded that the petitioner did not raise any objection whatsoever regarding the jurisdiction and powers of Additional Commissioner in the course of the proceedings before him, and, therefore, he was debarred from agitating the point of the alleged lack of jurisdiction in this petition. It was denied that an area of 320 sq. Yds. Was granted to the father of the petitioner. The contention of the petitioner that the temporary lease was granted for the purpose of building cheap houses was disputed and it was pointed out that the Resolution bore out that the father of the petitioner and one Haji Yousuf were allowed on weekly rental basis to use land for storing old building material only and for no other purpose. The permission was purely of temporary nature and automatically lapsed. The plea of the petitioner that houses were constructed and given on rent to certain persons was denied for want of knowledge. The further allegation that one tenement was sublet to respondent No. 4 was also denied. In this connection it was pleaded that the respondent No. 4 migrated from Ahmedabad in 1954 and found a vacant piece of land measuring 98 sq. Yds. Out of schedule R. C. 4 and it was occupied by him and he also raised temporary construction to run his own business. Since then he was in occupation of it. It was further pleaded that in the P. T. I. Register of Excise and Taxation Department he was shown as owner of the property and he was paying property tax. He had also paid taxes to the Municipality.
6. The electric meter was installed in his name. He had let out a portion of the shop to one goldsmith in 1955 and after he surrendered the possession to him he let out the said portion to another person for running the tea stall on contract basis. It was further contended by respondent No. 4 that on 1-6-65 he submitted an application to the Land Manager, Municipal, Corporation requesting him to regularise his possession and leasehold rights to be granted to him in respect of 98 sq. Yds. Of land which was in his possession. He was then informed by the land Manager by letter dated 29-5-67 that Chairman, K. M. C. Had decided that an area measuring 43 sq. Yds. Would be considered for disposal to him on payment of the price at the rate of Its. 225 per sq. Yd. While the remaining 55 sq. Yds. Were included in the deferred street scheme of K. D. A. On the receipt of this letter he signified his willing--ness to pay the price and requested that the matter be placed before the Corporation for necessary action. However, the Finance Committee, on account of certain extraneous considera--tions did not accept his request despite the fact that the Land Manager had held an inquiry on the spot and his possession was vindicated. The Municipal Corporation also for the same reasons endorsed the decision taken by the Finance Committee. He denied that he had any knowledge about the request having been made by the petitioner for the grant of lease. It was further stated that the Resolution passed by the Finance Committee as well as by the K. M. C. Were in flagrant disregard of the law, rules, precedents and office reports and had been passed on account of the influence of the late Mr. Hashim Gazdar, and were also opposed to the principles of natural justice, and, therefore, the Additional Commissioner was legally competent to amend, set aside, override or modify the same. It was added that in the present case the Resolution was amended with the agreement of the parties concerned. The appeal was legally within the jurisdiction of the Additional Commissioner or who was competent to decide the appeal and he had in fact decided it in terms of the compromise reached between the parties. It was also urged that even if the matter was already pending before the Commissioner for the approval of the Resolution he was entitled to file an appeal, and in any event he was legally competent to urge against the Resolution passed by the Municipal Corporation. The petitioner's predecessor had constructed the house unauthorisedly and thus did not acquire any right to the land. No house was constructed by the petitioner's predecessor on the disputed portion. The findings of fact were arrived at by the Additional Commissioner on thorough and sifting Inquiries and were not open to challenge in these proceedings. Regarding the plea of the petitioner that he had deposited Rs.
7. 28,000 it was urged that the Resolution of the Municipal Corporation could be legally modified, amended or set aside under the law. The petitioner had been granted lease of laud measuring 222 sq. Yds. While only 43 sq. Yds. Had been granted to the respondent and, therefore, sub--stantial justice has been done with the agreement of all the parties. Pie petitioner had withheld the material facts and had made incorrect representations deliberately and as such was disentitled to relief under Article 98 of the Constitution of Pakistan.
8. Turning the merits of controversy it was urged by the learned counsel for the petitioner that the Commissioner who was the Controlling Authority under the Municipal Adminis--tration Ordinance, 1960 had no power to authorise the Additional Commissioner to examine the propriety of the Resolution. To support this contention reliance was placed upon section 111 of the Ordinance which reads as under : "(1) If, in the opinion of the Controlling Authority, anything done or intended to be done by or on behalf of a Municipal Committee is not in conformity with law, or is in any way against public interest, the Controlling Authority may, by order:
(a) quash the proceedings ;
(b) suspend the execution of any resolution passed or order made by the Municipal Committee ;
(c) prohibit the doing of anything proposed to be done ;
(d) require the Municipal Committee to take such action as may be specified.
(2) Where an order under subsection (1) is made by a Controlling Authority other than the Government, the Municipal Committee concerned may, within thirty days of the receipt of the order, represent against it to the Government and the Government may either confirm or modify or set aside the order."
9. From the above provision of law it is plain enough that the Controlling Authority alone had the power to examine the Resolution passed by the Municipal Corporation and pass suitable orders keeping in view the conditions laid down by the section. So far the Controlling Authority for the purpose of section 111 of the Ordinance is concerned it is an admitted position that the Commissioner was the Controlling Authority. No provision of law has been quoted to enable the Commissioner to authorise the Additional Commissioner to examine the propriety of the Resolution.
10. A feeble attempt was made to sustain the action of the Commissioner on the basis of the addition of rule 6 to the West Pakistan Municipal Committees (Appeals) Rules, 1960 framed under section 119 of the Ordinance and the amendment of the Schedule to the rules which authorised the Commissioner to transfer appeals against the order of the Municipal Corporation for disposal to the Additional Commissioner. According to these rules the appellate authority is shown in the Schedule to the Rules. Prior to the addition of rule 6 the appellate authority against the orders of the Municipal Committee was the "Controlling Authority" but subsequently the rules were amended (as they stand now) and "Commissioner" was substituted for the "Controlling Authority" in the Schedule and further rule 6 was added to empower the Commissioner to transfer the appeals to the Additional Commissioner for disposal. The Controlling authority and Commissioner are separately defined by the Municipal Administration Ordinance and are distinct authorities although tile Commissioner was appointed as Controlling Authority. In view of the distinction, there arose the necessity of amending the Schedule to the Rules.
11. The application of the rules cannot be invoked in the present case. The Municipal Corporation had simply passed a resolution which was subject to approval by the Controlling Authority under section 111 of the Ordinance. Consequently the Controlling Authority alone had the power to deal with the Resolution and that power could not be delegated to the Additional Commissioner. The amendment in the rules did not affect the provision of the Statute. If there is any conflict between the Statute and the Rules, the former must prevail over the latter. There was no order passed by the MunicipalCorporation so that it could be said that an appeal could be filed against that order. The word "order" has not been defined in the Ordinance or in Basic Democracies Order or in the General Clauses Act. Taking dictionary meaning it connotes a mandate, a command or a direction. No such thing can be found in the Resolution passed by the Municipal Corporation which was still subject to approval by the Controlling Authority. There is a clear distinction between a Resolution which was passed and the order contemplated by the Rules. The resolution was a recommendation for the consideration of the Controlling. Authority and not an order.
12. Indeed the respondent No. 4 had filed an appeal against that Resolution but this could not be treated as an appeal against an order, which could be transferred to the Additional Commissioner but it had to be considered by the Commissioner himself as Controlling Authority while examining the propriety of the Resolution in the exercise ref his powers under section 111 of the Ordinance.
13. Consequently the action of the commissioner in authorising the Additional Commissioner was without jurisdiction.
14. In order to meet this it was urged by the learned counsel for the respondent i1o. 4 that the petitioner had not taken any objection to the jurisdiction of the Additional Commissioner when he proceeded to hear the matter. We find no force in this contention. The petitioner had pleaded in para. 11 of the petition that objection to the jurisdiction was taken but the learned Additional Commissioner without deciding the objection disposed of the appeal on merits. Comments of the Additional Commissioner were called and he did not specifically deny it. According to the rules of the pleadings if a fact is required to be denied is not denied it must be deemed to have been admitted.
15. However, it appears that although the objection to the jurisdiction was taken at the initial stage, but after the compromise was reached between the parties, the objection was abandoned. In this connection the learned counsel for the respondent No. 4 placed reliance upon two authorities i.e. The case of Yasin Khan and another v. Settlement and Rehabilitation Commissioner and others (PLD 1967 Kar. 295) and the case of Abdul Wahab and others v. Habib Ali and others, (PLD 1969 Lah.
16. 365). In the former authority the relevant observation reads as under :- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
17. Of course in that case the objection to the jurisdiction was not taken but the observation made by his Lordship in the aforesaid authority equally applies to the present case as the petitioner who though had raised objection subsequently abandoned it and entered into compromise. It was on the basis of the compromise that the impugned order was passed.
18. In the second authority it was laid down that one of the principles laid down by C. P. C. Is that a party after having consented to an agreed decision cannot appeal against the same. This principle was applied in that case which was also a petition under Article 98 of the Constitution. It was further laid down that the principles of estoppel by conduct applies with full force to such a situation. It was further observed that if a party by its conduct obliges a Court to adopt the course which is contrary to its practice that party would be debarred from raising the objection as to the procedure, on the very selected principle that after having allowed the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. Thus a party which leads the Court to deviate from the normal procedure is normally estopped from challenging the order passed by the Court on the consent of such a party.
19. The learned counsel for the respondent No. 4 also attacked the maintainability of the petition. He urged before us that the petitioner was not an aggrieved person within Article 98 of the Constitution and his objection was two-fold. Firstly it was pointed out by him that the Resolution passed by the Municipal Corporation did not create any vested right in him and, therefore, he could not challenge the order which wa3 passed. We find no force in this contention. The Resolution does not stand by itself but further steps had been taken to implement it. The petitioner, in pursuance of the Resolution had deposited Rs. 28,000. The Resolution was forwarded to the Commissioner to accord approval under section 111 of the Ordinance. In this connection we would refer to the pertinent observation made in the case of Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), which reads as under :- "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
20. These observations equally apply to the present case. Reference may also be made to the case of Ahmadullah and others v. Karachi Municipal Corporation (PLD 1971 Kar. 514). That was also the case of property which was sought to be transferred by a Resolution passed by the Municipal Corporation, which was subsequently submitted to the Controlling Authority (Commissioner) for approval under section 111 of the Ordinance. It was held that the petitioners were the aggrieved persons within Article 98 of the Constitution.
21. The second objection is based on the impugned order itself. It was pointed out that this order was passed by consent of all the parties, namely, the petitioner, the respondent No. 4 and the Municipal Corporation, and, therefore, the petitioner could not be said to be an aggrieved person. We find considerable force in this contention. The relevant portion of the impugned order has already been reproduced while narrating the facts and it clearly reads that the petitioner had consented to the transfer of 43 sq. Yds. Of land to the respondent No. 4. Having once given the consent it does not lie in his mouth to retract from it and challenge the same order by filing this petition. He cannot be permitted to retrace his steps. The learned counsel for the petitioner tried to urge that the petitioner had consented only to the maintenance of the Resolution of the Corporation and not to the grant of 43 sq. Yds. To the respondent No. 4, but reading the impugned order as a whole it is not possible to accept his contention. It appears that the petitioner was anxious to obtain as much land as possible and In consideration of that agreed to the grant of a portion of the land to the respondent No. 4. Thus he having abandoned his claim to that portion of the land cannot be allowed to reclaim it. The Resolution passed by the Municipal Corporation did not amount to the transfer of the land to him as it was still open to the Controlling Authority to accord or withhold the approval and it, therefore, appears that the petitioner being apprehensive of the action that may be taken by Controlling Authority was satisfied with the grant of major portion of the land which was sought to be granted to him on the basis of the compromise.
22. It was further contended by the learned counsel for respondent No. 4 that the petitioner did not come with clean hands and had either made mis-statements of facts or had suppressed the fact that he had consented to the impugned order, and this disentitled him to the relief. With regard to the first allegation it was pointed out that the petitioner had stated in the petition that the land was granted to his father for the purpose of building cheap houses to be let out on rent whereas the Resolution passed by the Municipal Corporation revealed that the land was granted to the father of the petitioner and one Haji Yousif on weekly rental basis for storing old building material. So far the second objection is concerned ft is also clear that the petitioner did not disclose in his petition that he had consented to the impugned order. Even the copy of the impugned order was not produced by him along with the petition, but the relevant portion of it wag reproduced by respondent No. 4 in his affidavit. The petitioner being fully conscious of the serious infirmity in his claim deliberately withheld the impugned order.
23. On the basis of our finding that the petitioner had consented to the impugned order and he cannot be permitted to challenge it and further he suppressed the fact that it was a consent order, he is disentitled to the relief. The petition is, therefore, dismissed.
24. KHUDA BAKHSH MARRI, J.-I agree.