Petitioner has filed Writ Petition No.3567 of 1999 before this Court on 25-2-1999 with the following prayer:--
(a) The respondent No. 1 may be directed to pay the compensation of 16 Marlas of land in Khasra No.28, partially acquired by the C.D.A. Out of ownership of the petitioner.
(b) They may be directed not to interfere with the peaceful possession of the petitioner and to allow him to raise the construction on the land admittedly belonging to the petitioner.
(c) If in any case they decide to acquire the total land, they be directed to pay the market price to the petitioner, or in the alternative, they should issue the No Objection Certificate to the petitioner so as to enable him to raise construction of the house or plaza on the land measuring 15 Kanals, 17 Marlas, which is situated in commercial area of C.D.A.
Any other relief which this Honourable Court may deem fit and proper, may be awarded to the petitioner, in the facts and circumstances of the case. In the meantime, the respondent No. l may kindly be directed to make payment of the land acquired by them.'r The aforesaid writ petition was disposed of by this Court vide order dated 2-11-1999 with the consent of the learned counsel of the parties. The Tehsildar, Rawalpindi and Tehsildar, Islamabad were appointed to demarcate the land in question after notice to the parties and visited the spot.
In case the aforesaid officer is found the claim of the petitioner genuine then the respondents would redress the grievance of the petitioner within one month. The detail facts has been noted by this Court in judgment, dated 2-11-1999 in Writ Petition 3567 of 1999. The aforesaid officer/official, after spot visit had given report in favour of the petitioner on 28-12-1999 as is evident from Annexure "A". The Deputy Commissioner has submitted report to the Deputy Commissioner of this Court vide letter, dated 15-2-2000 as is evident from Annexure "E". The aforesaid report reveals that area of 15 Kanals, 17 Marlas belonging to the petitioner falls within the 300 feet limit of C.D.A.
Petitioner submitted an application before the Chairman C.D.A. On 24-1-2000 with the prayer that NOC for raising construction should be granted to him. The respondents did not pass any order on his application and preferred the application before the Deputy Commissioner, Islamabad for demarcation/objection on the report of the Local Commission. The said application was dismissed by the Deputy Commissioner vide order, dated 15-6-2000. The respondent No.2 informed the petitioner that they had moved the objection petition to the Deputy Commissioner, Islamabad which is pending adjudication, and his application would be decided in the light of the decision on the objection petition filed by the respondents before the Deputy Commissioner. Petitioner being aggrieved filed this writ petition with the following prayer on 17-7-2000.
"It is, therefore, prayed that the respondents may kindly be directed to issue ' No Objection Certificate' to the petitioner for raising construction on the land owned by the petitioner or in the alternative pay the present market price as per order of the Honourable High Court dated 2-11- 1999. "
2. Learned counsel for the petitioner submits that the Writ Petition No.3567 of 1999 was decided with the consent of the parties. Therefore, respondents have no authority to by-pass the judgment of this Court. He further submits that respondents have no authority not to decide the application of the petitioner, dated 24-1-2000 after the report of the Tehsildar dated 28-12-1999.
3. Learned counsel for the respondents raised preliminary objection that writ petition is liable to be dismissed as the petitioner failed to implead the proper and necessary party Director, Housing and Physical Planning of Government of Punjab. Petitioner had impleaded Director, Housing and Physical Planning in the first round of litigation. He further submits that petitioner is not owner of the land in question as the land in question was acquired by the Housing and Physical Planning Department of the Punjab Government and the ownership of the land was mutated in favour of the Government vide Mutation No.111, dated 5-8-1964. He further. Submits under instructions that the Provincial Government is also taking steps for the production of its right. He further submits that petitioner approached this Court with unclean hands. It was in the knowledge of the petitioner that respondents had filed objection petition against demarcation held by the Tehsildar on 28-12-1999 before the Deputy Commissioner who did not decide the same till date. He further submits that Deputy Commissioner is duty bound to decide the objection of the petitioner. He further submits that action of the Deputy Commissioner is without lawful authority and is in violation of the mandatory provisions of West Pakistan Land Revenue Act i.e. Section 117 and Rule 67-A framed thereunder. He further submits that respondents are well within their right to file objections against the report of the Tehsildar, dated 28-12-1999 before the Deputy Commissioner. Respondents had raised six objections which are valid as the demarcation was made without notice to the respondents. He further submits that independent cause of action accrued to the respondents on the basis of the report, dated 28-12-1999. Therefore, respondents are well within their right to file objections against the report of the Deputy Commissioner. He further submits that the respondents did not accept the contents of the report, dated 28-12-1999. He further submits that the respondents had statutory right to challenge the demarcation report before the Deputy Commissioner who was bound to decide the objection petition of the respondents on merits and this Court may direct the Deputy Commissioner to dispose of the objection petition filed by the respondents in accordance with law. He further submits that respondents are not in a position to issue NOC to the petitioner unless the matter of demarcation and pursuant proceedings are finally decided by the Deputy Commissioner. He further submits that in the earlier writ petition, the respondents simply admitted that petitioner is owner of some land in Revenue Estate Dina Hardo Sheri.
4. Learned counsel for the petitioner in rebuttal submits that in earlier writ petition, the respondents admitted in para.1 that petitioner is owner of some land in Revenue Estate Dina Hardo Sheri.
Similarly respondent No.3 in the earlier writ petition Director, Housing and Physical Planning admitted in reply of para.1 that petitioner is owner of some land in Revenue Estate in question. He further submits that respondent No.3 is not necessary and proper party. Petitioner filed suit for declaration against the Director Housing and Physical Planning Department and others on 1-9-1994 before the Civil Judge 1st Class, Rawalpindi to the effect that he was owner in possession of land in question and the respondents had no right whatsoever to interfere with his possession over the said land. The suit of the petitioner was dismissed vide judgment and decree, dated 30-1-1996 by the learned Civil Judge 1st Class; Rawalpindi. Petitioner being aggrieved filed Civil Appeal No.40 before the Additional District Judge, Rawalpindi on 28-2-1996 who accepted the appeal vide judgment and decree, dated 13-5-1996. The Director, Housing and Physical Planning Department and others did not challenge the aforesaid judgment before any higher forum that is why respondent No.3 admitted the ownership in the earlier round of litigation. Therefore, Director, Housing and Physical Planning is not proper and necessary party. He further submits that objection filed by the respondents before the Deputy Commissioner were dismissed and the respondents did not file any appeal and revision before the higher authorities of the Revenue side and also did not file any writ petition against the said order before this Court. He further submits that request of the learned counsel for the respondents that direction be issued to the Deputy Commissioner to decide the objections filed by the respondents is not maintainable in the eyes of law.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the operative part of the earlier judgment, dated 2-11-1999 in Writ Petition No.3567 of 1999 to resolve the controversy between the parties:--
(6) Learned counsel for the petitioner is agreeable to the proposal made which otherwise appears to be reasonable and proper in the circumstances...
(7) In this view of the matter, the Tehsildar, Rawalpindi and Tehsildar, Islamabad are appointed to visit the site with notice to parties and in their presence, to demarcate the land comprised of Khasra No.19/2 (5 Kanals, 3 Marlas), 20/1 (6 Kanals, 15 Marlas), 22 (1 Kanal, 5 Marlas), 189/28 (2 Kanals, 14 Marlas) total measuring 15 Kanals, 17 Marlas, as detailed in the document annexed at page 23 of this writ petition. The two officials will prepare a joint report by spot inspection and will identify location of the land, and also as to whether any part of the same falls within 300 feet of the C.D.A. Limits and if so, to what extent. In case, the report is to the effect that any part of the land of the petitioner falls within the area of C.D.A., the respondents will either acquire the land within one month, by completing the proceedings in accordance with law and making payment of compensation to the petitioner. If the C.D.A. Will not be -interested to acquire the land, it will permit the petitioner to raise construction by granting necessary NOC subject to the rules. As regard the payment of compensation of 16 Marlas of land in Khasra No.28; already acquired, the petitioner can approach the functionaries concerned for payment of the compensation, already assessed, under the award."
The aforesaid operative part reveals that the earlier writ petition was decided with the consent of the learned counsel for the parties which is binding and final between the parties. The principles of C.P.C. Are applicable in writ petition as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. Therefore, respondents have no authority to wriggle out from the operative part of this judgment on the well-- known principle of approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC 376.
The offer was made by the learned counsel for the respondents and accepted by the learned counsel for the petitioner and the aforesaid order was subsequently acted upon by both the parties. Therefore, both the parties could not resile from it, as is held by the Supreme Court of Pakistan in Saleem Ahmad v. Khushi Muhammad 1974 SCM R 224. The relevant observation is as follows:-- "The High Court rejected both the contentions and held that there was no ground in law are in equity on which the petitioner could. Claim the right of resiling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated."
It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:--
(i) Petitioner filed suit for declaration against Director, Housing and Physical Planning Department and others before the Civil Judge 1st Class, Rawalpindi on 1-9-1994.
(ii) The suit of the petitioner was dismissed by the learned Civil Judge 1st Class vide judgment and decree, dated 30-1-1996.
(iii) Petitioner filed appeal before the Additional District Judge, Rawalpindi on 28-2-1996.
(iv) Appeal was accepted vide judgment and decree, dated 13-5-1996.
(v) Judgment and decree of the Court was not challenged by the Director, Housing and Physical Planning Department and others till date.
(vi) Petitioner filed Writ Petition No.3567 of 1999 on 25-2-1999 before this Court.
(vii) The writ petition was disposed of with the consent of the parties vide judgment, dated 2-11- 1999.
(viii) The Tehsildar concerned prepared demarcation report on 28-12-1999 which reveals that area 15 Kanals, 17 Marlas belonging to the petitioner falls within 300 feet limits of C.D.A.
(ix) The petitioner filed an application before Chairman, C.D.A. For issuing N.O.C. On 24-1-2000.
(x) The Deputy Commissioner submitted report in pursuance of the judgment, dated 2-11-1999 to the Deputy Registrar, Lahore High Court.
(xi) The respondents filed objections before the Deputy Commissioner against the aforesaid report, dated 28-12-1999.
(xii) The Deputy Commissioner dismissed the objections of the respondents vide order, dated 15-6- 2000, .
(xiii) Respondents informed the petitioner that respondents had moved the objection petition to the Deputy Commissioner and his application would be decided after the decision on the objections through letter, dated 6-6-2000.
(xiv) Petitioner has filed present writ petition on 17-7-2000.
The aforesaid facts reveal that the respondents did not file any appeal or revision against the order of the Deputy Commissioner dated 15-6-2000 till date before any higher authorities under the provisions of the West Pakistan Land Revenue Act, 1967. The contention of the learned counsel for the respondents that Deputy Commissioner be directed to decide the objections of the respondents has no force as per law laid down this Court in C.M. No-741 of 1992 filed in Writ Petition No.382 of 1989 which was converted in to a petition under Article 199 of the Constitution and finally decided in the following terms:-- "It was further stated that the petition was not maintainable and premature because the proceedings ,were already pending before the District Judge, Islamabad, in pursuance of the earlier consent order of the parties. The petition was challenged to be nothing more than abuse of process of law. The learned Judge in Chamber, however, converted the petition under section 151, C.P.C. Into a writ petition by his order, dated 27-2-1993 and directed the petitioners therein to make payment of the compensation within one month of the order in respect of 326 respondents assessed by the C.D.A. Minus 15% of the cost of ' Malba' ignoring the earlier controversial issue pending decision between the parties."
The aforesaid judgment of this Court was upheld by the Honourable Supreme Court in Khuda Bakhsh's case 1994 SCM R 771. In case the request of the learned counsel for the respondents is accepted and the written statement be converted into writ petition. Even then the respondents are not entitled any discretionary relief on the well-known principle he who seeks equity must come with clean hands but the respondents did not come with clean hands. Therefore, I am not inclined to exercise my discretion in favour of the respondents as per principle laid down by the Honourable Supreme Court in Nawabzada Ronaq A.I's case PLD 1973 SC 236. It is admitted fact that Deputy Commissioner submitted report to the Deputy Registrar of this Court vide letter, dated 15-2-2000 and intimation that objection petitions were dismissed by him vide letter, dated 15-6-2000 but the respondents did not agitate the matter before any higher authorities as respondents want to get benefit of their own misdeeds or in action. Since the matter has been finally decided in the Civil Court qua the ownership of the land in question between the petitioner and Director, Housing and Physical Planning. Therefore, judgment of the Additional District Judge 13-5-1996 is final between the petitioner and Director, Housing and Physical Planning and others as per principle laid down by the Honourable Supreme Court in Pir Bakhsh's case PLD 1987 SC 145. On the well-known principle of resjudicata. Therefore, Director, Housing and Physical Planning is not proper and necessary party. It is settled principle of law that judgment and decree of the Civil Court is precedent over the mutation.