1. BASHARAT AHMAD SHAIKH, J.---This appeal is directed against the judgment passed by the High Court on 24th of November, 1994 by which a writ petition filed by the appellants was dismissed. The appellants are residents of Muzaffarabad city and in the writ petition filed by them they had challenged the change in the location of a Public Park.
2. The averments in the writ petition were that land measuring 29 Kanals 8 Marlas situated in Dherian Muzaffarabad city was acquired by the Collector Land Acquisition vide award, dated 17th of June, 1990 on the request of the development Authority Muzaffarabad made through letter, dated 26th of July, 1989 for the construction of Public Park. Amount for the construction of the park was made available in financial year 1990-91 out of Special Development Programme. The park was partly constructed but subsequently the development Authority converted the land under reference into a housing colony known as Gulshan Housing Scheme. An advertisement was placed by the Development Authority in national newspapers that plots were available in Gulshan Housing Scheme and would be sold through public auction on 20th of march, 1994. The aforesaid announcement of the Development Authority as well as the conversion of land for a use different from the purpose for which it was originally acquired was challenged on various grounds.
3. Pre-admission comments were called from the respondents, Development Authority, Muzaffarabad and Azad Government of the State of r Jammu and Kashmir. Para-wise comments were submitted on behalf of the Development Authority on 7th of April, 1994. Preliminary arguments were heard on 16th of April. The writ petition was, admitted for regular hearing on 16th of April, .1994.
4. On the next date of hearing when written statements were to be filed a statement was made by Kh.
5. Shahad Ahmad, which was backed up by a written request, that para-wise comments with which some documents were also attached, may be treated as written statement. The prayer was accepted. It is relevant here to point out that Kh. Shahad Ahmad has been described in the order of the High Court recorded on 24th of April, 1994 as counsel for the respondents but on the record there is no Vakalatnama or direction from Government authorising Kh. Shahad Ahmad to appear on behalf of the Government. In fact there is on the file a direction issued from the Law Department on 2nd of April, 1994 asking the Advocate-General to prosecute the case on behalf of the respondents. The learned Advocate---General was not present on 24th of April, 1994. The learned Advocate-General subsequently appeared for the Government and we are not in doubt that he and not Kh. Shahad Ahmad, was the counsel for the Government. Thus the para-wise comments submitted by the Development Authority cannot be treated to be written statement of the Government.
6. Raja Muhammad Hanif Khan, the learned counsel for the appellants, vehemently contended before us that the High Court fell in error in holding that the appellants were not aggrieved persons. He cited a large number of cases, including those from England and India, to contend that being residents of Muzaffarabad City, for whose benefit the park was being constructed, the appellants had the locus standi to file a writ petition to force the Development Authority, which is a statutory body performing functions in connection with the affairs of Azad Jammu and Kashmir, to act in accordance with law. The learned counsel also cited authorities to show the scope of public interest litigation and to contend that the present writ petition was covered by that concept. We need not discuss in detail the judgments cited by the learned counsel on this point because in our opinion the writ petition has not been dismissed on the ground that the appellants were not aggrieved persons as will be presently seen.
7. The judgment of the High Court can be divided into two parts. In the first part the High Court noted that the appellants were not owners of land which had been acquired for the construction of a public park. It was held that although the acquired land was being put to a different use the appellants could not raise this objection only the previous owners of the land could throw a challenge to that action by praying that the land may be restored to them or they may be paid extra amount equal to the profit which the Authority might earn by selling the land through auction.
8. The learned Judge in the High Court expressed the view that the appellants could not in their personal capacity plead for the safeguard of the interests of the previous owners. The High Court also expressed the view that a writ of mandamus and certiorari cannot be filed in representative capacity.
9. PLD 1969 SC 223) which has been duly noted in the judgment under appeal. The learned Judge found the judgment applicable and followed it in the following passage: " ....From this authority it is clear that if any person is deprived from a facility such person has a right to maintain a writ petition. This is also my considered view that an aggrieved person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, would not necessarily mean a person having a strict legal right even a person who is deprived of a benefit or any privilege through an omission or by an illegal act, could be considered as an aggrieved person."
10. It is, therefore, incorrect that the High Court rejected the plea of the appellant that they had the locus standi to file a writ. In fact the High Court accepted this plea and then examined the case on merits and then reached the conclusion that on merits the appellants had no case. It is in this context that the learned Judge observed in the operative part of the judgment that:--- " ------.Therefore, in these circumstances, the petitioners have got no legal grievance:'
11. It appears that the learned counsel for the appellant misconstrued the meaning of the term legal grievance.
12. Kh. Shahad Ahmad, the learned counsel for the Development Authority, clarified before us that he did not raise the objection before the High Court that the writ petitioners were not aggrieved persons. He did not contend even before us that the appellants had no locus standi to file the writ petition.
13. We have noted the grounds on which the writ petition had been dismissed. However, Raja Muhammad Hanif Khan contended before us that other important points which had been raised before the High Court have been left undecided. One of these points which, as claimed were left undecided, was raised with great vehemence before us was that under section 11 of the Development Authority, Muzaffarabad Act, 1989 the Authority was bound to get the approval of the Government for all plans and programmes prepared by the Authority for the development of any part or whole of the notified area, but the setting up of a Housing Colony in place of a Public Park was not got approved from the Government.
14. On the other hand Kh. Shahad Ahmad, the learned counsel for respondent No. 1, apart from controverting this argument, contended that the writ petition suffered from laches and was liable to be dismissed on that ground. He submitted that this point was raised before the High Court but has not been decided while dismissing the writ petition.
15. Ch. Muhammad Yousuf, the learned Advocate-General, who appeared on behalf of the Government, argued that the Government has not accorded approval for the setting up of the Housing Colony although it was necessary under section 11 of the Act. He submitted that the question of laches has not been argued before the High Court.
16. Before adverting to the other points we would like to examine the question of laches because if the petition suffers from laches the dismissal of the writ petition would be justified on that score and in that case we would not be called upon to decide the other points.
17. The writ petition was filed on 17th of March, 1994. In the para-wise comments, subsequently treated as written statement, the Development Authority stated that the land measuring about 30 Kanals was acquired for the construction of a Public Park but when work was taken in hand the people living in adjoining houses started raising objections that the proposed Park would adversely affect the privacy of their houses. It was claimed that the Development Authority, thereupon decided in the year 1993 to set up the park at a place which was at some distance from the residential area.
18. Consequently land measuring 92 Kanals was purchased through negotiations at Makri and construction of Public Park commenced on that land. It was claimed that work was now nearing completion. Later on the Development Authority decided to set up a mini housing scheme on the land originally acquired for Public Park. It was stated that work on the housing scheme was also nearing completion and the plots earmarked for housing scheme were being sold by public auction but it was postponed on the direction of the High Court.
19. The written statement was accompanied by certain documents which support the factual pleas mentioned above. We may notice the contents of these documents:
(i) Minutes of the meeting of the Officers of the Development Authority presided over by the Chairman of the Authority which was held on 21st of July, 1993. It was decided to reserve the land measuring roughly 100 Kanals which had been recently purchased in village Makri for setting up of a Park as substitute for Eidgah Pubic Park. However, 30 Kanals out of the land mentioned above was earmarked for a housing colony. It was also decided that the land acquired for Eidgah Park would be disposed of by public auction.
(ii) Clipping from a newspaper published on 14th of August, 1993 showing tree plantation work in progress in Makri Hill Park under the aegis of the Development Authority.
(iii) Notification issued under the signature of the Chairman of the Development Authority on 15th of August, 1993 which recites that according to the Master Plan land measuring 29 Kanals in Dherian could only be used for residential purpose and could not be utilised for any other purpose without approval of the Government. Even otherwise the people living in the locality near Eidgah Park were raising demands and were exerting pressure which had necessitated the shifting of the Park to some other area in public interest. It was further stated in the notification that usefulness of the Park could only be achieved if the Park is shifted to a sprawling area which could be used by all the inhabitants of the city while Eidgah Park could only be utilised by one Mohallah. This notification was issued, as is claimed in it, under section 9(2) of the Development Authority Muzaffarabad Act read with section 11 and in pursuance of the meeting of the Development Authority held on 21st of July, 1993.
(iv) A photograph showing the. Prime Minister of Azad Jammu and Kashmir offering prayers after laying foundation stone of Hill Park Makri on 20th August, 1993. The plage fixed on the occasion can be conspicuously seen in the photograph on which the abovementioned date is mentioned. There is another photograph taken on the occasion in which the Prime Minister and other dignatories like the Speaker and Ministers can be seen.
(v) Newspaper clipping of 21st of August, 1993 which contains a report that Prime Minister of Azad Jammu and Kashmir had laid the stone of Makri Hill Park.
(vi) A newspaper clipping of 5th of September, 1993 showing the Prime Minister of Azad Jammu and Kashmir inspecting the Makri Park.
(vii) Order dated 16th of September, 1993 issued by the Secretary Administration of the Development Authority showing that a sum of Rs. 37,300 has been sanctioned by the Chairman as advance payment to the owner of a Bulldozer for earth work necessitated due to the conversion of Eidgah Park into housing scheme.
(viii) Order of 22nd of December, 1993 sanctioning Rs. 1,700 for fixing of boundary marks for the new Gulshan Housing Colony.
(ix) Copy of order issued by Secretary (Admin) on 21st of February, 1994 showing that the Chairman had sanctioned a sum of Rs. 29,529 for owner of the Bulldozer for earth cutting work and a sum of Rs. 11,390 was sanctioned for purchase of blasting material and labour charges.
(x) A report prepared by the Assistant Horticulture Officer of the Authority on 29th of March, 1994 showing the progress of work at the Makri Public Park over an area of 92 Kanals. The report shows that construction of Track entrance and work on 1-1/2 k.m. Of Hiking Track had almost been completed. It also mentions that 70% work of mini Zoo had been completed while remaining work was in progress. The report also shows that eleven items like slides, umbrellas etc. Had been fixed in the Park and 300 ornamental plants have been planted. The report also contains the details of items which had been purchased and were in the process of being installed. The report contains a note that children and people of all ages were visiting the Park in good number.
20. Apart from these documents we may also notice two documents filed by the appellants. One is the advertisement placed by the Development Authority in a newspaper published on 8th of March, 1993 that plots would be sold by public auction on 30th March. It tends to show that all preparations necessary before selling plots had been completed. The second document has been filed, for some other purpose, in this Court. It is copy of the sale-deed showing that land measuring 92 Kanals was purchased in Makri on 10th of June, 1993. This is the same land on which Makri Hill Park has been set up.
21. From the record mentioned above it is clear that when the appellantsfiled their petition in the High Court on 17th of March, 1993 the position on the ground had undergone material change. By spending public money the Development Authority had almost completed the physical changes which were necessary to convert the Eidgah Park into a housing colony. Decision to set up a Park at Makri on the land already purchased at a cost of Rs. 64,00,000 and to auction the land under Eidgah Park was taken on 21st of July. The record further shows that when the writ petition was filed on 17th of March the work on Makri Park was in advanced stage.
22. The jurisdiction granted by section 44 of the Interim Constitution Act is discretionary in nature and relief is always refused if the Court forms the view that it would be unjust to allow the remedy where the conduct of a party, which comes to the Court, is such that it may amount to waiver. Remedy is also refused where the party is, though perhaps not waiving that remedy, yet the other party has been put in a situation of disadvantage in which case it would not be reasonable to unsettle the party. If this conduct is accompanied by lapse of time and delay it assumes greater importance.
23. These principles have been upheld by this Court in Nusrat Fatima v. Azad Government, of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 93.
24. The facts of the present case clearly show that if a writ is issued at this stage it would not only work prejudice to the Development Authority but would also necessarily lead to waste of public money which has already been expended. In our view it would be inequitable to issue a writ even if we come to j the conclusion that any illegality has been committed by the Development Authority in undertaking work which is in pubic interest.
25. For the reasons stated above the appeal is dismissed. The parties will however bear their own costs in this Court.