' MUHAMMAD YUNUS SURAKHVI, J.---The above-titled both the appeals, with the leave of the Court, have been preferred against the judgment of the High Court, dated 14-12-1998, whereby the writ petition filed by respondent No,1, herein, was accepted and the allotment of plots made in favour of appellants, herein, was set at naught. As the above-titled both appeals arise out of a consolidated judgment of the High Court, we, therefore, propose to dispose them of through this single judgment.
2. The facts of the case, precisely stated, are that respondent No,1, Dr. Aurangzeb, filed a writ petition in the High Court alleging that Plot No,225-C, measuring 35' x 60! And Plot No,225-B, measuring 25' x 50', situate in Sub-Sector D-3 East Mirpur, were allotted in favour of respondents 5 and 6, herein, respectively and subsequently the same were transferred in favour of Aftab Ahmed, respondent No,7, herein. According to the case of Dr. Aurangzeb, respondent No,1, herein, he was an allottee of corner Plot No,16-G, situate in the same Sector and the aforesaid allotment in favour of respondents 5 to 7 adversely affected the utility of his plot. He further alleged that the allotment in favour of appellants, herein, was violative of the relevant law and the rules because the said plots were not marked in the Master Plan or in any mini plan of Sector approved by the competent Authority. The appellants, herein, contested the writ petition inter alia on the ground that the same was hit by the principle of laches and that the contesting respondent was estopped from his conduct to file the writ petition because he himself had applied for the allotment of the said plots and when his application was turned down, he filed the writ petition. It was also averred by the appellants that respondent No,1 did not come in the Court with clean hands and was not entitled to any relief. It was also the case of the appellants in the High Court that the allotments in their favour were made in the year 1993 and the writ petition was filed in the year 1995 and, thus, was badly hit by the principle of laches. The High Court observed that as the case of respondent No,1, herein, was that the allotment in favour of appellants, herein, was made secretly, therefore, the question of laches did not arise.
3. Ch. Muhammad Anwar, the learned counsel appearing on behalf of appellants in both the appeals, has contended that the cancellation of allotment to the extent of Plot No,225-B was violative of law. He has further argued that there is no proof in support of the argument that the allotments made in favour of appellants adversely affected the utility of plot of respondent No,1.
The learned counsel has also contended that initially respondents Nos.2 to 4 took the stand in the written statement that the allotments in favour of appellants were duly made, but subsequently their counsel took inconsistent stand in the arguments that in fact the allotments in favour of appellants, herein, were against law, as the same were made without any amendment in the Master Plan. The learned counsel for the appellants has further submitted that in the written statement filed by the appellants in the High Court, they took a definite stand that the allotment in their favour was made in 1993. Whereas the writ petition was filed on 18-11-1995, nearly after about two years and as such the writ petition was liable to be hit by the principle of laches. In reply to the aforesaid stand taken by the appellants, respondent No,1 though gave an explanation with regard to Plot No,225-C. By alleging that the allotment was secured secretly and it came to the knowledge of respondent No,1 when the appellant, allottee of Plot No,225-C, started digging the plot for the purpose of construction. The explanation for laches furnished by respondent No,1 with regard to Plot No,225-C is also devoid of any legal foundation, because it was enjoined upon respondent No,1 to specifically mention the date or the day on which the appellant started digging the plot so that it could have been inferred as to when the contesting respondent acquired the knowledge. However, with regard to Plot No,225-B, no explanation whatsoever was furnished by the contesting respondent. So, in absence of any explanation, it cannot be assumed that the factum of allotment of plots came in the knowledge of contesting respondent on the day of digging of the plots. The learned counsel for the appellants also explained that the contesting respondent in fact applied for the allotment of the said plots and when his application was turned down by the M.D.A. Authorities, he filed a writ petition. So, by his conduct the contesting respondent was estopped to file the writ petition as he did not come in the Court with clean hands and the relief in a writ petition which is discretionary in nature could not have been granted to the contesting respondent.
4. Ch. Muhammad Riaz Alam, the learned counsel for respondents, controverting the arguments advanced by the learned counsel for the appellants, submitted that the impugned judgment passed by the High Court suffered from no illegality or infirmity. The learned counsel argued that the contesting respondent has averred in the writ petition that when the appellants started digging the plots on spot, he acquired the knowledge of allotments in the names of appellants and soon thereafter filed the writ petition. He also argued that the allotments in the names of appellants were violative of law as the plot of respondent, being a corner plot, no allotments could have been made in their favour which had adversely affected the utility of the plot of the contesting respondent. The allotments in the names of appellants, according to the learned counsel for respondents, without effecting the amendment in the Master Plan by a competent Authority could not have been made by the M.D.A. According to the learned counsel where the plots allotted to appellants were located, on its three sides there was a road utilised by the answering respondent and these allotments have seriously jeopardized the interests of the respondent. The learned counsel also contended that by no stretch of imagination it could be said that the respondent was not an aggrieved person or had no locus stand' to challenge the allotments by filing a writ petition.
The learned counsel strenuously argued that the respondent's plot being a corner plot and when its utility was adversely affected, he was certainly an aggrieved person within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that though the contesting respondent has given explanation in his writ petition as well as in the replication that when appellant-allottee started digging Plot No,225-C, the factum of allotment then came in the knowledge of contesting respondent. This explanation, according to the learned counsel for respondents, was sufficient in the eye of law to the point of laches. We will be adverting to this explanation furnished by the contesting respondent in the later part of the judgment. At the present moment it may be clarified that so far as Plot No,225-B is concerned with regard to this plot there is no explanation of laches given by the contesting respondent. It was specifically averred by the appellants in their written statement before the High Court that Plot No,225-B was allotted in the name of respondent Muhammad Azam in October, 1993, whereas the writ petition was filed in November, 1995, therefore, the writ petition filed by the contesting respondent suffered from laches. We cannot accept the contention of the learned counsel for the respondents that the explanation that when the appellant, allottee of Plot No,225-C, started digging the plot on the spot the respondent acquired the knowledge of the allotment in favour of appellant, and the same shall be construed to be an explanation even with regard to Plot No,225-B. Even the explanation for laches furnished by the contesting respondent with regard to Plot No,225-C, in our view, is not satisfactory and reasonable. The case of appellant, allottee of Plot No,225-B, had all along been that after securing the allotment of plot in dispute he had raised construction of a house on the spot. It was for the contesting respondent to explain specifically as to when he acquired the knowledge of allotments in the names of appellants, after all according to the claim of the appellant, allottee of Plot No,225-B, a house on the spot could not have been constructed within a few months as normally the construction of a house consumes a long time. Thus, the appellants furnished no reasonable explanation for delay in filing writ petition in so far as Plot No,225-B is concerned. Similarly the explanation for laches furnished with regard to Plot No,225-C is not satisfactory. Assuming for the sake of arguments that the above explanation for laches with regard to Plot No,225-C to be reasonable, even then we are of the view that the contesting respondent did not come in the Court with clean hands. On the one hand he himself applied for the allotment of said plot and when his application was turned down, he filed a writ petition in the, High Court. In our considered view a petitioner in a writ petition could not blow both hot and cold in the same breath.
The discretionary relief is always granted to a litigant who comes in the Court with clean hands. In a case reported as Kashmir Mining and Development Works v. Azad Jammu and Kashmir Government and 5 others (1997 CLC 1771), the brief facts of the case were that a prospecting licence of marble stone of the area ,known as Chunj-Gali, Tehsil- and District Muzaffarabad, was issued in favour of respondent therein. The appellant therein filed a writ petition in the High Court challenging the aforesaid licence issued in favour of respondent on the ground that the same was issued in violation of rules on the subject and the application of the appellant for the licence was rejected on the grounds which are not recognised by the relevant law. The writ petition was dismissed by the High Court. An appeal filed by the appellant therein was also dismissed by this Court observing at page No,12 of the report by my Lord, the Chief Justice, who spoke for the Court in a following way:- "Thus, on the one hand the appellant benefited from the Committee and accepted its competency but on the other hand he challenged its jurisdiction with regard to the licence for extraction of marble. It is well-settled principle of law of writs that a party which does not come to the Court with clean hands by following the policy of hide and seek is not entitled to the discretionary relief in exercise of writ jurisdiction. A reference may be made to the cases reported as Abid Hussain Jafri v.
Azad Government (1998 PLC (C.S.) 141) and Bashir Ahmad v. Additional Custodian of Evacuee Property (1998 CLC 692), wherein the aforesaid principle has been affirmed. Therefore, irrespective of the validity or otherwise of the arguments advanced by the learned counsel for the appellant, we are of the view that the appellant is not entitled to any relief in view of his conduct indicated above."
6. So far as the contention of the learned counsel for respondents that the plots were not marked in the original Master Plan and having been marked subsequently without the approval of competent'
Authority is concerned, it may be stated that it is true that the plots in dispute were not shown in the Master Plan appended with the writ petition. It is also true that when the plots in dispute were marked on the basis of an additional plan, the same was also not approved by the competent Authority. Be that as it may, the fact of the matter is that Plot No,16-G claimed by respondent No,1 to have been allotted to him on the basis of mini Plan of the Sector which is not approved by the competent Authority is situated in the same Sub-Sector, wherein the disputed plots were allotted in the names of appellants. Moreover, the contesting respondent-also applied for the allotment of plot in dispute and his application having been rejected by the M.D.A., he is estopped by his conduct to file the writ petition against the appellants, alleging that the allotments in favour of appellants were violative of law for the reason that the same were existing neither in the Master Plan nor in the Mini Plan of the Sector approved by the competent Authority. Since the jurisdiction exercised under section 44 of the Azad Janunu and Kashmir Interim Constitution Act, 1974, being discretionary in nature, the discretionary relief could not be granted to a person who blows both hot and cold in the same breath.
7. For the afore stated reasons, by setting aside the impugned judgment of the High Court, we order the dismissal of writ petition filed by respondent No,1 in the High Court. Consequently the allotment of disputed plots made in the names of appellants stands restored. However, in the circumstances of the case, we pass no order as to costs.