This writ petition is directed against the order of Border Area Committee, dated 14th May, 1985 and an earlier order, dated 9th March, 1976 passed by the then Officer Incharge of the Border Area Committee, Lahore.
2. The land in dispute measuring 483 Kanals is located outside municipal area of Kasur. The petitioner in order to establish his right to the land in dispute and show locus standi has filed a copy of an allotment order in his favour, dated 7th April, 1971. This is Annexure `A' to the petition. On a perusal whereof it is to be found that on the left side margin of this document there exists an endorsement to the following effect:- "In exchange of land in Padhana under the orders of A.J./A.G."
A copy of the impugned order of Mian Waheed-ud-Din Rathore, Settlement Commissioner Lands/Officer Incharge Border Area Committee, dated 9th March, 1976 has been filed as Annexure `F' to the petition. Validity of this impugned order is sought to be challenged after 11 years delay, inter alia, on the ground that it was passed behind the back of the petitioner, without his knowledge or any notice to him. In the body of the writ petition on the strength of the aforesaid pleas the petitioner has tried to explain his failure to challenge this order earlier in point of time before a higher forum and laches were also sought to be overcome.
3. In brief, it is the case of the petitioner that he was allotted land in village Padhana, Tehsil and District Lahore which was resumed and in lieu thereof land was allotted to him by the Border Area Committee on 7th of April, 1971, near the city of Kasur but outside the municipal limits. The petitioner, thereafter, in the year 1975 applied to Border Area Committee for permission to pay belated instalments for the price of land. Another application dated 27th/29th September, 1975 to the same effect appears at pages 17/18 of the Department's file produced at the hearing by the learned Legal Adviser for the Border Area Committee which has been perused by the learned counsel for the petitioner. The record revealed that contemporaneously the case of non-payment of instalments by the petitioner had been taken up by the Minister's Inspection Team. A reference was thereafter made to the General Headquarters to consider the petitioner's request for the deposit of the instalments of the price of land near Kasur. The General Headquarters vide its letter, dated 9th/11th February, 1976 decided that the allottee Ex.-Maj. General A.A.K. Niazi will not be permitted to deposit the price of the land in dispute. This letter also finds mention in the impugned order of 9th March, 1976 passed by the Settlement Commissioner (Lands)/Officer Incharge Border Area Committee. The original of this order is to be found on pages 27/28 of the Departmental file produced by the learned Legal Adviser for the Border Area Committee which has been perused by me in Court today as well as by the learned counsel. The land subsequently is stated to have been allotted to respondent No.2 on 8th June, 1985, price paid up by him and mutation sanctioned m his favour.
4. Preliminary objections have been raised on behalf of the learned Legal Adviser for the Border Area Committee Ch. Muhammad Rafiq Khan, which need to be attended to at the very outset. First submission made is that the petitioner in order to overcome the hurdle of laches negligence and long inaction spreading over about a decade from 1976 to 1985 has resorted to suppression ofmaterial facts. Reference has been made to Annexure `F to establish that two pivotal lines have been purposefully omitted from the impugned order to lay foundation for taking grounds (A), (B) and (E) in the writ petition, that is, of lack of knowledge of the passing of the impugned order, dated 9th March, 1976 and also making out a ground for condoning the excessive laches in approaching this Court for grant of discretionary relief. Learned Legal Adviser for the Border Area Committee has produced the original order (Annexure F) from the file which has been shown to the learned counsel appearing for the petitioner. It must be observed that indeed on comparison of the original order with its copy, Annexure F, certified to be true copy by the learned counsel, it has been found that the vital lines are missing from the copy. These missing lines are as under:- "The: allottee appeared in person and was apprised of the position and the decision of the General Headquarters."
5. Learned counsel for the Border Area Committee submits that there could be no manner of doubt left in the mind of any reasonable person that when the petitioner appeared in person before the Border Area Committee, he was apprised of the position and decision of the General Headquarters vide its letter, dated 9th/11th February, 1976. This also establishes that he had knowledge and notice of the impugned proceedings and thus he by his failure to challenge it allowed to become final and the present Constitutional petition suffered from laches. According to the learned counsel, intentional omission of these material lines from the copy of the impugned order produced before this Court amounted to a sharp practice in order to gain an advantage by obtaining relief through false averments and suppression of facts material for the decision.
6. I felt obliged to take notice of the sorry state of affairs and to call upon the learned counsel for the petitioner to explain this visible suppression in the impugned order. Learned counsel for the petitioner explained that he was supplied the brief which contained a hand written copy of Annexure F which he got typed and, therefore, the omission of these lines was not his act. The fact remains that the pivotal lines have been proved to be deliberately omitted from certified to be true copy of the impugned order, dated 9th March, 1976 (Annexure F to this petition).
7. The second preliminary objection of the learned counsel for the Border Area Committee relates to alleged forged endorsement appearing on the left side margin of Annexure `A' which is a photostat copy. It is to the following effect:- "In exchange for land in Padhana under the orders of AJ.(A.G.), He explains that this interpolation has been made with ulterior purpose and amounts to another sharp practice. Counsel in order to support his submission relies on para. 3 of the writ petition which reads as under:- "3. That while posted as Commander 10 Div. Lahore, the petitioner was allotted, by the Border Area Committee, agricultural land at village Padhana Tehsil and District Lahore. This land was however, resumed. In lieu of the land so resumed agricultural land measuring 486 kanals 6 marlas situated in the revenue estate of Kasur, Tehsil and District Kasur was duly allotted to the petitioner on 7-4- 1971 by the Border Area Committee (Copy of allotment order, dated 7-4-1971 is attached as Annexure A). This land falls outside the Municipal Limits of Kasur City.The allotment was reflected in the relevant Revenue records in the name of the petitioner and he is regularly paring land revenue for the land."
On a comparison by the Court of the endorsement on the left hand margin of Annexure `A' with the original copy at page 46 of the departmental file, it transpired that such an endorsement did not exist on the original record. The learned counsel for the petitioner after examining this position was unable to give any explanation for this deliberate unauthorised addition. It is thus established that Annexure 'A', which carries unauthorised additions is also a spurious document. This makes the position obvious that the petitioner deliberately put up a wrong version to create a false impression that the allotment in dispute at Kasur was given to him in lieu of the land in Padhana. The factual position as it emerged before this Court as a result of admission made by the learned counsel for the petitioner as well as learned counsel for the Boarder Area Committee shows absolutely a different position. Mr. Faqir Muhammad Khokhar, Advocate states that the allotment was made in favour of the petitioner in Padhana on 4th May, 1970 and the land in Kasur was allotted during the subsistence of that allotment on 6th\7lh of April, 1971. Learned counsel for the Boarder Area Committee has further drawn my attention to letter dated 22nd May, 1971 which is at page 49 of the master file relating to allotment in Kasur during the year 1971 which reads as under:-- "It is certified that I have elected to take the land allotted to me vide your above quoted ltr in village Kasur Khas, Teh. Kasur District Lahore and in return I surrender the land previously allotted to me in village Padhana, District Lahore."
9. In the case of Saleh Shah and 6 others v. The Custodian of Evacuee Property, Pakistan, Lahore and another 1971 SCMR 543 it was held that a person "was not entitled to any assistance from Court or Tribunal unless he comes with clean hands. In the cited case on finding out that the application suppressed fact of dismissal of similar application filed in the past in respect of the same subject-- matter, the Court observed that it amounted to practising fraud. Consequently, the petition was dismissed on this ground, which was filed under Article 98 of the Constitution.
1969 SCMR 141 it was held that a petitioner approaching the Court in Constitutional jurisdiction and found to be suppressing material facts in his petition, the High Court was justified in dismissing his petition while holding that he has not approached the Court with clean hands.
A Division Bench in the case of Wali Muhammad v.Secretary, Home Department PLD 1972 Quetta 33 held that writ was a discretionary remedy and not available to a person coming to Court with sullied hands.
PLD 1968 Lah. 258 it was held that since the petitioner seeks to invoke, what after all is equitable jurisdiction of this Court and is guilty of suppression of material facts, the Court regarded it to be a fit case in which to refuse any relief regardless of the merits of the case.
A Division Bench in the case of Tando Adam Transport Co. Ltd. v. Member, Board of Revenue, West Pakistan PLD 1966 (W.P.) Karachi 527 held that the relief granted under Article 98 of the 1962 Constitution was discretionary and person seeking relief must come to Court with clean hands and that such a conduct disentitled the petitioner to grant of any discretionary relief.
The view which prevailed with Courts in India appears to be akin with the view taken by the superior Courts of this country. Reference can be made to the decision by Mangalmurti and Mudholkar, JJ reported in AIR (38) 1951 Nagpur 43) wherein the following principle has been recapitulated:-- "The remedy which the applicants seek is a discretionary one and when the question before the Court is whether it should exercise its discretion in favour of a party or not, it would certainly bear in mind the conduct of that party. In support of our view, we may refer to the opinion of Lord Hatherley in The Queen v. Churchwardens of All Saints, Wigan, (1876) 1 A.C. 611 at page 622: 'Upon a prerogative writ there may arise many matters of discretion which may induce the Judges to withhold the grant of it matters connected with delay, or possibly with the conduct of the parties---------" It is true that the powers which this Court has under Article 226 are very wide and that the writs which this Court is empowered to issue are not prerogative writs. All the same it is clear that the power which the Court has is a discretionary one and therefore, the principle enuciated in the Churchwardens' case, ((1876) I A.C.611) would apply where a person seeks tae assistance of this Court under Article 226.
35. We would also refer to the decision in Reg v. Garland, (1870) 39 L.J.Q.B. 86:(5 Q.B. 269), where it was held that where a process is ex debito justitiac the Court would refuse to exercise its discretion in favour of the applicant where the application is wanting in bona fides. Finally we would refer to the decision in Reg v. Davis, (1866) 13 L.T. 629: (14 W.R. 329), where the Court refused to exercise discretion in favour of the petitioner, who sought to have a Magistrate's order revised because he had refused to answer certain questions properly put to him by the Magistrate. It seems to us that all these decisions justify our conclusion that this is not a kind of case in which we ought to render any assistance to the applicants even assuming that there was any force in their application. We may add, by referring to the statement contained at page 380 of Prem's Writs based on 55 Corp.
Jur. 41, that the view taken regarding a matter of this kind by the Courts in the United States of America is the same as that taken in England.
36. For all these reasons, and following the view taken by Courts in England and the U.S.A. We dismiss the application with costs."
A Division Bench in the case of Narain Dass and another v. State of Punjab AIR 1953 Punjab 193 held that:-- "It "It is true that the suit of the Municipality was dismissed but the petitioner had carefully suppressed the fact that it was dismissed on a technical ground and that it had been held that he was a tenant-at-will. This, in my opinion, is a suppression of a material fact in the affidavit and this alone would be sufficient for refusal to make the rule absolute. This was held by this Court in - `U.C.
Rekhi v. Income Tax Officer 1 Ward, New Delhi', AIR 1951 Simla 1." "a petitioner for an equitable relief cannot be throwing dust into every body's eyes and behaving with the clear intention that he should be able to indulge in some activities which he does not want others to know. The Courts in such circumstances can have no choice except to refuse the assistance."
The ratio decidendi of the precedent cases cited above would appear to apply to the facts of the present case. It follows that exercise of the Constitutional jurisdiction can be denied to the petitioner who is guilty of deliberate suppression of material facts or making a misrepresenation or approaches this Court with unclean or sullied hands. In the circumstances of the present case, I find no mitigating circumstances to adopt a contrary course except to refuse relief to the petitioner on account of his deliberate unclean conduct of suppression of material facts and misrepresentation and filing of false documents in exercise of discretionary Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
10. Now I would like to take up the question of laches extending over 11 years pressed into service by the learned counsel for the respondent Border Area Committee resulting from inaction of thest petitioner to take any measure to challenge the impugned order of March 1976 passed by the Officer Incharge of the Border Area Committee, Lahore to the knowledge of the petitioner. The same objection has been raised in respect of the petitioner's failure to challenge the order of the General Headquarters, dated 9/11th February, 1976 refusing permission to the petitioner to deposit instalments for the land in dispute. According to the learned counsel for Border Area Committee, the petitioner despite full knowledge having failed to challenge these orders is guilty of inaction, negligence, acquiescence and excessive laches and in the meantime valuable rights of a third party have also intervened which are going to be prejudiced in case this Court grants relief to the petitioner.
11. Learned counsel for the writ petitioner has attempted to give no satisfactory explanation for this conduct of the petitioner except for the submission that the petitioner was not obliged to challenge the order of the General Headquarters which had been acted upon by the Officer Incharge Border Area Committee which was a confidential letter. Similarly, there is no explanation furnished for failure to challenge the order of the Border Area Committee, dated 9-3-1976 which has been proved to have been passed to the knowledge of the petitioner and he also appeared in those proceedings as is borne out from the original order. These relevant lines are missing from the impugned order as contained in Annexure `F', dated 9-3-1976. It is an admitted fact that the land in dispute is near Kasur and in the meantime stood allotted to respondent No.2 who has since paid up the price and mutation sanctioned in his favour.
12. It will be advantageous to refer to the principle of laches, acquiescence and failure to challenge an order before a higher forum and thus allowing it to become final. I would here refer to my own judgment in the case of Mst. Majidan Khanum v. District Judge, Vehari 1984 CLC 3270 wherein the doctrine of laches and exposition of law as propounded by the Superior Courts has been exhaustively dealt with. In the precedent case after careful analysis of the case law on the subject, I had expressed the following view:-- "I feel the necessity to point out that the rigours of law of limitation and doctrine of laches are distinct in scope and application. The former extinguishes the remedy by force of the Statute and a valuable right accrues in favour of opposite side when the matter becomes barred under the Limitation Act or limitation prescribed by special statute, but principles of laches are invoked where statutory limitation is not prescribed but pleas of laches are invoked where statutory limitation is not prescribed but the Court takes into account the conduct of a party involving indolence and excessive inaction equivalent to acquiescence or waiver of the remedy and which resulted in causing prejudice to the opposite side. Sometimes, the interest of an innocent third party may have intervened on account of laches. In such like cases, the Court on equitable consideration and keeping in view the requirements of justice in circumstances of a case refuses to exercise its discretionary jurisdiction in favour of a person guilty of laches who approaches the Court for discretionary relief. The rigours of law of limitation are rigid and Courts insist upon explanation of each day's delay beyond the period prescribed and sufficient cause must be established for extension of time whereas the decision of question of laches would depend on facts and circumstances of each case and the delay can be explained to the satisfaction of the Court."
I had also considered the dicta in re: John Ojobo Agbeyegbe v. Festus Makene Ikomi & another PLD 1953 Privy Council 19 and the enunciation of law made by the Supreme Court of Pakistan in the case of S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367. I may also here refer to the decision of the Supreme Court of India in the case of Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others AIR 1969 Supreme Court 329 wherein a proposition of law has been laid down in para. 11 of the report in the following terms:- "It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v.
Prosper Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221 at page 239 as follows: `Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.' This passage was cited with approval by this Court in a recent case - The Moon Mills Ltd. v. M.R. Mehar, President Industrial Court, Bombay, AIR 1967 SC 1450. In our opinion, the principle of this decision applies to the present case and since respondent No.1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in their favour."
13. In the present case, no explanation for the delay has been given, rather it was pleaded that the impugned order had been passed behind the back of the petitioner and without his knowledge or notice to him. On the contrary, as already mentioned, from the perusal of the original impugned order placed on the departmental file, it stands established that in the copy Annexure `F, the fact that the petitioner appeared before the Officer Incharge Border Area Committee and was informed of the order of the General Headquarters, Rawalpindi, dated 9/11th of February, 1976 refusing to allow him to pay instalments and condoning delay in that behalf stands established. I am, therefore, constrained to hold that in the absence of reasonable explanation for the excessive delay inaction on the part g of the petitioner to challenge either of the two orders referred to above, amounts to acquiescence, inordinate delay and laches. The inaction and delay involved in this case is so excessive that it just cannot be ignored coupled with the fact that suppression of facts has taken place to get over this hurdle standing in the way of the petitioner.
14. The principle is by now well-settled that a party which fails to challenge an order which is adverse to him, allows it to become final by not assailing it before a higher forum. Subsequently, it stands precluded to challenge it. Such an order becomes final qua that party. This enunciation has been made by the Supreme Court of Pakistan in number of cases. I would respectfully follow the same.
15. I have found it difficult to subscribe to the line of reasoning adopted by the learned counsel for the petitioner for the simple reason that in the impugned order, dated 9-3-1976, there is a clear mention that the petitioner was informed of the order of the General Headquarters which was adverse to him. The petitioner while challenging the impugned order, dated 14-5-1985 should have been put on guard to challenge also the order of the General Headquarters referred to above The petitioner failed to do so with promptitude and within reasonable time, at aproper stage. It is not possible for this Court to permit this ground to be raised in the midst of arguments particularly in the absence of General Headquarters from the array of respondents. No order can be passed for setting aside of this order on mere desire in the absence of the necessary party.
16. A further hurdle in the way of the petitioner is that without having the orders, dated 9/11th February, 1976 and 9th March, 1976: set aside, he cannot assail the validity of allotment m favour of respondent No.2 in the year 1985.
17. There is hardly any need to further dilate upon the matter because the chief grounds noticed and dealt with are sufficient to determe the fate of the petition and in particular petitioner's conduct which disentitles him to discretionary relief.
18. The learned counsel for respondent No.2, Mr. Muhammad Ismail Qureshi, also re-emphasised the submissions made by learned counsel for respondent No.1.
19. The not result is that this is not a fit case for exercise of discretionary Constitutional jurisdiction to interfere with the impugned orders. The Constitutional petition fails and is hereby dismissed.
There shall, however, be no order as to costs.
AA./A-550/L