MUHAMMAD YUNUS SURAKHVI, J: --This appeal, with the leave of the Court, has been filed to call in question an order recorded by the High Court on February 19, 1995, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The precise facts forming the background of the present appeal are that Plots Nos.36, 37 and 38 situate in Chattar Domail, Muzaffarabad were allotted to the appellant by the Allotment Committee (hereinafter to be referred as the Committee) in its proceedings, dated June 5, 1979, and June 27, 1979, in accordance with the site plan prepared by the Committee. After having paid the price of plots on December 31, 1986, the allotment order was issued on the same date. The possession of the said plots is claimed to have been handed over to the appellant on February 14, 1989. The appellant also filed a civil suit in the Court of Sub-Judge, Muzaffarabad and an ex parte decree for perpetual injunction restraining the respondents from interfering in or transferring the plots in dispute was passed in his favour on April 29,1993. The appellant, herein, filed a writ petition in the High Court on July 14,1994, under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to restrain the respondents from changing the site of plots in dispute which were allotted to him by the Committee. It was claimed in the writ petition that the price of the plots having been deposited, the possession being delivered and the ex parte decree having been passed in favour of appellant by the Civil Court, the respondents were not legally competent to change the site plan and make fresh allotments. During the pendency of the writ petition a notification, dated April 21,1994, was issued by the Azad Government of the State of Jammu and Kashmir, the vires of which were also challenged by the appellant by seeking an amendment in the writ petition. It was also averred in the writ petition that according to the changed site plan the members of Allotment Committee were allotted plots on the main road with a mala fide intention.
3. A learned Judge in the High Court vide his impugned order, dated February 19, 1995, dismissed the writ petition mainly on the ground that on account of the exclusion of Khasra Nos. 391 and 402 from the award it had become impossible for the Committee to restore the original position and the appellant was allotted plots even under the new scheme with his consent, and therefore, was not entitled, to any relief.
4. It was vehemently contended by Syed Nazir Hussain Shah Kazmi, the learned counsel appearing on behalf of appellant, that after making the allotment in favour of appellant, issuing the allotment chit and handing over the possession the respondents were vested with no jurisdiction to alter or change the original site plan, particularly so when an ex parte decree restraining the respondents from interfering into the plots and making any sort of change into the original position had been passed by a competent Court in his favour. It was maintained by the learned counsel that during the pendency of the writ petition Government was not empowered to issue Notification directing the Committee to make fresh allotments to the detriment of the appellant. The learned counsel submitted with vehemence that the whole exercise was made in order to deprive the appellant of his valuable right which had already accrued to him on account of allotment having been made in his name and the allotment chit acid the possession slip having been issued to him. The learned counsel also pressed into service the submission - that the respondents with a mala fide intention re-scheduled the original site plan in order to. Give undue advantage to the members of the Committee and plots were allotted to the members on the main road, thereby jeopardizing the interest of the appellant. On account of subsequent allotment, according to the new and changed schedule, the plots allotted to the appellant were shifted from front side towards back.
5. On the other hand Mr. Ghulam Mustafa Mughal, the learned counsel appearing on behalf of respondents, controverted the arguments raised by the learned counsel of the appellant. The learned counsel maintained that on account of judgment of the High Court Khasra Nos. 311 and 402 were excluded from the award and the area falling in these numbers was de-notified. In the circumstances it had become impossible for the Committee to allot the plots to the appellant and others in accordance with the original site plan. However, the learned counsel strenuously contended, that it is on record that the previous site plan was changed with the consent of the appellant and he was allotted new plots under the new scheme. Having accepted the plots under the new scheme, the appellant was not entitled to any relief whatsoever. The learned counsel maintained that no violation of any law and rules has been committed by the Committee, therefore, the remedy of writ petition was not available to the appellant. According to the learned counsel for the respondents the impugned judgment was open to no exception and the High Court committed no illegality in dismissing the writ petition.
6. We have heard the respective contentions, points canvassed by the learned counsel for the parties and perused the record made available with care.
7. At the very outset it may be pointed out that there is a marked distinction between the jurisdiction vested in a Civil Court, while exercising its powers as a Court of appeal and the jurisdiction exercised by the High Court in writ jurisdiction. The High Court while exercising the writ jurisdiction cannot sit upon the judgments of subordinate Courts or local authorities or Tribunals as a Court of appeal. Even the illegal orders or judgments passed by the subordinate Courts or Local Authorities or Tribunals cannot be set aside by the High Court while exercising its powers in writ jurisdiction. To have a proper appreciation of the matter it is deemed expedient to- reproduce subsection (2) of section 44 of the Azad Jammu and Kashmir Interim, Constitution Act, 1974, which reads as under:--- "S. 44(2). Subject to this Act, the High Court, may, if it is satisfied that no other adequate remedy is provided by law:---
(a) On the application of an aggrieved party make an order:---
(i) Directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or Local Authority to refrain from doing that which he is not permitted by law to do, or to do that which is required by law to do."
The plain reading of the above extract from section 44 of the Act reveals that a writ of mandamus can only be issued when there is a legal right vested in the aggrieved person and the person against whom the mandamus is sought is B under a legal obligation to perform or refrain from performing an act. Thus, the scope of powers of the High Court and even this Court in accordance with the limits and confines of law postulated in the above provisions are limited and can only be exercised in the exigencies mentioned above. In the instant case it may pertinently be mentioned that there was no legal sanction behind the allotments made by the Committee. The admitted position is that the Government neither enacted any law nor framed any rules regulating the allotments or prescribing any procedure for allotments. In absence of any law or rules made thereunder it cannot be said with any stretch of imagination that in changing the original site plan and making fresh allotments, the Committee violated any of the provisions of law or rules or travelled beyond its jurisdiction. Both the learned counsel when confronted with this situation, by the Court, admitted that no law was enacted or rules were framed for regulating the allotments.
Thus, we are of firm opinion that in absence of any case made out for violation of law or excess of jurisdiction, the remedy by way of writ was not available to the appellant. In the case reported as "Azad Government of the State of Jammu and Kashmir v. Ansar Burney" 1994 SCR 243 it was opined by this Court that "a writ of mandamus cannot be issued against the appellant, herein on the basis of moral, political or humanitarian consideration. A Court of law has to act within the four corners of law and not out of moral or humanitarian consideration, howsoever, compelling the same may be".
In case reported as "Masudul Hassan v. Khadim Hussain and another" PLD 1963 SC 203 it was held "that an applicant seeking an order of mandamus must show that there resides in him a legal right to be enforced and there is a legal duty on the party against whom a mandamus is sought, to do or refrain from doing an Act". In case tilted "Mrs. M. Ali Khan v. The Province of East Pakistan and others" PLD 1960 Dacca 382, it was held that "a mandamus will issue only if there resides in the petitioner some legal right who has no other remedy for the redress of the same and that the person against whom the mandamus is sought has a statutory obligation to perform or refrain from performing the act".
8. According to the original scheme the allotment of plots in favour of appellant was made out of Khasra Nos. 391 and 402 acquired through Award No.38 of 1986, dated October 21, 1986. The award to the extent of above numbers was set aside by the order of the High Court given in the writ petition titled "Abdul Rashid and another v. Azad Government and others", dated December 10, 1989.
Thus, the plots allotted for the purpose of shops from the above-referred Khasra numbers did not remain available for allotment. In such an eventuality the Committee was left with no alternative except to prepare and re-schedule the new scheme and the new site plan. Faced with the aforesaid predicament Deputy Commissioner, Muzaffarabad vide his letter, dated March 28, 1994, in his capacity as Chairman, Allotment Committee, addressed to the Commissioner, Muzaffarabad Division, pointed out that on account of exclusion of certain area from the award on the basis of judgment of High Court it had become impossible for the Committee to maintain the original position and according to the original allotments it had become practically impossible to locate the boundaries of plots to the allottees. It was suggested through this letter that re-scheduling of the scheme and site plan be made and in this regard Government may be moved to issue a Notification to accord its sanction. In pursuance of this proposal made by the Chairman, Allotment Committee, the Government issued a Notification, dated April 21, 1994, granting sanction for re- scheduling the site plan and making re-allotments to the allottees. It also transpires from the record that the move for re-scheduling the site plan and the re-allotment by the Chairman of the Committee was made with the consent of the members of the Allotment Committee and the original allottees who affixed their signatures on the list of allotment. The signature of appellant Ghulam Mustafa appears against his name at page 28 of the High Court file. As a result of mutual consent and agreement between the Committee on the one hand and the allottees on the other, the original site plan was changed and allotments were made. This aspect of the case makes it abundantly clear that the appellant duly participated in the proceedings of subsequent allotments which were made with the consent of the allottees and the appellant also consented to the same and having acquiesced in the matter cannot now come forward with a volta face to change the subsequent allotments in which he acquiesced. Acquiescence of a party in a particular proceeding is always fatal for that party to seek Constitutional remedy. In the case reported as "Miss Avi, J.
Cama v. Banwarilal Agarwal and others" AIR 1953 Nagpur 81, para. No.21, it was held that "before granting a writ of quo warranto it is necessary to see that the relator is a fit person to be entrusted with this writ. The Court will not listen to a candidate who has acquiesced or perhaps concurred in the very act which he afterwards comes to complain of when it suits his purpose. It will not issue a writ of quo warranto at the instance of the candidate for an election who did not object to the nomination of another candidate for the same constituency at the proper time. We are, therefore, not prepared to issue a writ of quo warranto at the instance of the petitioner who did not object to the nomination of respondent No.1 at the proper time". In the case reported as "Rajendarkumar Chandanmal v. Government of State of M.P. And others" AIR 1957 Madhya Pradesh 60, para. No.21, it was observed: "the writ of quo warranto is not generally issued as a matter of course and it is discretionary with the Court to do so or withhold the same. The conduct of the petitioner who comes to Court praying for its issue becomes one of the factors which have to be taken into account in this respect and the writ ought not to be issued at the instance of a person who has acquiesced in or perhaps concurred in the very act which he afterwards comes to complain of".
Similarly in the case titled "Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others" PI.D 1973 SC 144 at page 150-A, it was opined by a Bench comprising of 3 learned Judges of Supreme Court of Pakistan in the following manner:--- "In these circumstances, we are inclined to hold that this writ petition was not maintainable as the appellant had treated the matter of the first selection as past and closed by unconditionally taking part in the second selection."
9. Acquiescence even by conduct has been held to be fatal for invoking the Constitutional jurisdiction. In the instant case the appellant is not only precluded by his conduct to seek the Constitutional remedy but .He practically participated in the subsequent allotment proceedings and with his consent and agreement arrived at between the allottees and the members of Allotment Committee the re-scheduling in the initial site plan was done and allotments were made. The appellant also accepted the subsequent allotments made in his favour and a categorical objection to this fact was duly taken by the respondents in their main and amended written statement. On filing the replication the appellant did not repudiate the claim of acceptance of subsequent allotments in his favour, however, he averred that he did not participate in the subsequent allotment proceedings and his signatures appearing on the allotment list have been forged. In this connection when Mr. Mahmood, Collector Land Acquisition, appeared in the High Court for getting his statement recorded, he categorically stated that the appellant participated in the subsequent allotment proceedings and duly consented to the subsequent allotments. The witness also deposed that the appellant accepted the subsequent allotments made in his favour and affixed his signatures on the list of allottees. When cross-examined by the learned counsel for the appellant no question whatsoever was suggested to the witness that the signatures of the appellant on the list of allottees were forged in any way. It is indeed correct that the witness was suggested that the appellant did not participate in the subsequent allotment proceedings, which the witness denied. But as said earlier no specific question was put to the witness with regard to the forged signatures of the appellant affixed on the list of allottees. This also suggests that appellant duly participated in the subsequent allotment proceedings and now he cannot turn round and take the plea that the subsequent allotments were made in violation of law.
10. As regards the `mala fide' attributed to the members of the Committee for making allotments in their own names, the argument appears to be fallacious and of no substance. Except Mr. Manzoor Hussain Awan, one of the members of the Committee, no other member was allotted any plot. Mr. Manzoor Hussain Awan, who happened to be S.E., P.W.D. At the time of impugned allotments was member of the Committee because of his office and was one of the affectees of the scheme and as unanimously resolved between the affectees and the Allotment Committee that the affectees will be allotted t plots in lieu of their lands having been acquired, he was also allotted plots initially according to the original site plan and thereafter under the new plan as was done in the case of other affectees including the petitioner. Had Mr. Manzoor Hussain Awan not been the member of Committee even then he would have been allotted plots, according to the formulated policy. So, the argument attributing the malice to the members of Committee is repelled as the same is not supported and substantiated by the record. Similarly the ex parte decree passed in favour of appellant could not have been enforced by filing the writ petition. The procedure for getting the execution of ex parte decree is specifically provided in the Civil Procedure Code. Instead of resorting to the remedies provided in the C.P.C., the appellant chose a %tong forum, wherein his grievance could not have been redressed.
11. The upshot of the above discussion is that the High Court committed no illegality in passing the impugned order; the appeal, therefore, stands dismissed with costs.