' CH. RAHIM DAD KHAN, C. J.-This is an appeal by leave which is directed against the judgment and order of the High Court of Azad Jammu & Kashmir dated 23-8-1975 whereby the writ petition, filed by the petitioner Major Shujait Ali, was dismissed.
2. The facts necessary for the disposal of this appeal briefly stated are that the dispute relates to the Residential Plot No, 37 situate in Sector B-2, New Mirpur Town. Late Syed Badi-uz-Zaman Shah father of the appellant and husband of respondent Mst. Surraya Begum, secured eligibility rights to the allotment of aforementioned plot, in year 1962, by a draw of lots. The other contestant for eligibility was Abdul Latif Qureshi son of Muhammad Shaft. Subsequently ; on 11-5-67 Syed Badi-uz- Zaman Shah, in writing, relinquished his rights to allotment of the plot and requested for its re- allotment in favour of his wife Mst Surra3a Begum, respondent No,
1. This request, in writing, was supported by an affidavit duly attested by the Oath Commissioner (which are Annexures R-1 and R-2 respectively). Thereupon the disputed plot was cancelled from the name of Syed Badi- uzZaman Shah and allotted in favour of respondent who, on payment of the balance of the price amounting to Rs, 9,520 which is 9/10 of the total price of the plot, secured the allotment in her own name confirmed and obtained the possession vide Annexure R-4.
3. The appellant, who is a son of Syed Badi-uz-Zaman Shah, during the lifetime of his father, 'stood still to the Birkenhead Drill' but after two years of the death of the father, the son considering it a 'demon tough bullet to chew' filed an appeal before the 'Appellate Authority' challenging the legality of the aforementioned order, termed by him 'cancellation order' but lost the appeal.
Thereafter he challenged by a writ petition the order of the Appellate Authority dated 2-2-1972 as well as the order of the Chairman, Allotment Committee cancelling the allotment as being illegal, void and ineffective. It was contended in the writ petition that the Chairman alone had no authority to cancel the allotment and that though this fact was conceded by the 'Appellate Authority' that the order of cancellation of allotment and re-allotment in favour of Mst. Surraya Begum were both without authority, yet it refused to reverse them because of the conduct of the parties as Syed Badi-ud-Zaman Shah had relinquished all his rights and did not challenge the agreement executed by him in favour of Mst. Surraya Begum as long as he lived ; which period ran over two years subsequent to the impugned order. It was further urged that the transfer of the plot by Syed Badi-uz-Zaman Shah in favour of Mst. Surraya Begum could be made only by a registered document, which, not being so, could not be acted upon. The entire price was claimed to have been paid by Syed Badi-uz-Zaman Shah, but on production of the receipt of payment by the respondent, the petitioner offered to reimburse the respondent.
' The High Court dismissed the writ on the grounds that- (a)there had been inordinate delay in filing writ petition ; (b)that there was nothing on the record to show that the allotment was made by the Chairman alone and furthermore it was not a case of allotment that was available to the general public but it was a result of mutual understanding between husband and wife. The husband failed to deposit the remaining price for 3 years on which count alone his allotment would have stood cancelled ;
(c) that it was not a question of transfer of ownership as no right of ownership had by then accrued to the allottee ; and
(d) that it was a family arrangement. Leave to appeal was granted to consider : "Whether the allotment made in favour of Surraya Begun, by the Chairman, was valid allotment and, if not, how it affects the rights of the petitioner and whether the petitioner can be considered to be aggrieved party entitled to invoke the writ jurisdiction of the High Court after the allotment was surrendered by his deceased father ?"
4. It was contended on behalf of the appellant that the cancellation of the allotment was ordered by the Chairman alone without associating the other members of the Committee and similarly the allotment in the name of the respondent was made by the Chairman himself. This averment allegedly finds support apparently from a passage in the judgment of the 'Appellate Authority' wherein, at page 2, it is recorded : "It is correct that the order of cancellation of allotment and allotment in the name of Mst. Surraya Begum was made by the Chairman, Allotment Committee himself while such orders are to be issued by the Allotment Committee."
' This remark of appellate authority is not supported by any evidence on the record ; rather, to the contrary, there is a copy of a letter issued by the Secretary of the Committee (Annexure R-3), which discloses that allotment of the Plot No, 37 in Sector B-2 in the name of the respondent was, in fact, made by the New Mirpur Town Allotment of Land Committee.
' Besides, for the sake of argument, in spite of the clear evidence contained in Annexure R-3, even if it is assumed that the cancellation of the allotment or the re-allotment was made by Chairman alone, it would amount only to an irregularity which in no way would render the order illegal as it does not prejudice the petitioner. Syed Badi-uz-Zaman Shah bad not, as yet, become a confirmed allottee. He only secured, by draw of lots, a priority right of eligibility to allotment of Plot No,
37. The other applicant, who did not succeed in the draw of lots, was one Abdul Latif Qureshi son of Muhammad Shafi. If Syed Badi-uz-Zaman Shah, after securing a right by draw of lots, had failed to deposit the balance of the amount within a reasonable time his allotment was liable to be cancelled under the provisions of section 10 of the New Mirpur Town Allotment of Land Act of 1966 (hereinafter called the Act).
' On draw of lot, Syed Badi-uz-Zaman Shah of course got a prior right of eligibility to allotment, but for three years he did not deposit the balance of the price and for that reason this prior eligibility right had not by then matured even into allotment. On payment of the balance, the allotment was to become final but even then the allottee would not become proprietor of the property so allotted to him until he had completed the construction of the house in accordance with the plan approved by the Committee and thereafter secured a transfer-deed. After winning, by draw of lots, the right of prior eligibility for the allotment of the plot, if it is surrendered by one who had made delay of three years in payment of the remaining price, it would in no way be deemed to have prejudiced such claimant, because (a) no one can be considered to have been prejudiced by one's own voluntary action and (b) even otherwise for his default in payment of the balance of the price, by operation of section 10 of the Act he would have forfeited his eligibility to allotment and the 1/10th advance deposit was liable to confiscation. But by relinquishment, he was, in fact, a gainer as the deposit amount thereupon was adjusted towards the price of the plot allotted to the respondent.
Syed Badi-uz-Zaman Shah never became proprietor ; so the question of violation of the provision of Registration Act was not involved at all.
6. Section 3 of the Act details the constitution of the Committee. It is to consist of a Chairmain and such other members not exceeding four in number as the Government may appoint. The business of the Committee is to be transacted at a place to be determined by the Chairman and the quorum necessary for transaction of such business is three according to section 5 of the Act. The Committee can delegate powers to the Chairman under the provisions of section 6 of the Act.
Reading the provisions of the Act as a whole, it would appear that if the business was transacted by the Chairman alone, it may be highly irregular but even so, this would not render the proceedings null and void, in this case. Since the Act authorises the Committee to delegate its powers to the Chairman as well, and after surrender of the right of prior eligibility to allotment of the plot, especially after failure on the part of Syed Badi-uz-Zaman Shah to pay up the balance, the allotment of the plot to the respondent would not prejudice at least the appellant as they themselves failed to make payment for three years. The balance was paid by the respondent, as would appear from Annexure R-5, on 19-5-1967 when a letter was written by the Secretary of the Committee requiring the respondent to pay the balance of the price.
7. There can be no manner of doubt about the fact that the authorities exercising the jurisdiction under any Act are expected to comply with the provisions of that Act but to say that "a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. There is always a distinction between elements which are essential for the foundation of jurisdiction and the mode in which jurisdiction has to be exercised".
8. In PLD 1974 SC 134, a case under the Pre-emption Act, a distinction has been drawn between mandatory and directory provisions of a statute. It has been laid down :- "As a general rule a statute is understood to be directory when it contains matter merely of directions, but not when those directions are followed up by an express provision, that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity ; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
' The provisions of the Act regarding transaction of business in a meeting do not necessitate any penalty, therefore, they will be taken to be directory and not mandatory and if they are taken to be directory, in the light of the above authority, disregard of the provisions in transaction of business would not render such transaction of business as invalid or illegal. On the same point, there is another authority, which is PLD 1966 SC 474, wherein it is observed that a provision is directory and not mandatory where the statute does not provide the consequences of the failure of nonobservance. It was a case between the Sutlej Cotton Mills and two registered Labour Unions.
The Labour Unions gave notice for strike to the Mill and, under law, to the Conciliation Officer. The law provided that in case the conciliation proceeding failed, the Conciliation Officer shall issue a certificate within fourteen days. The proceedings failed but the certificate was issued after twenty days. The Unions preferred appeal before the Industrial Court which was accepted and the Court gave its award in favour of the Unions. Against this award of the Industrial Court, the Sutlej Cotton Mills preferred appeal before the Supreme Court. Among others, the following two points were also raised in that appeal :
(a) That the certificate was not issued within time i,e, 14 days, and the provisions of the issuance of certificate are mandatory.
(b) That in course of proceedings before the Industrial Court, the evidence was recorded by one member only whereas the Court consisted upon three members including Chairman.
' The Supreme Court, deciding the first point, held that since the consequences of such failure of issuance of certificate within time, as the proceedings being illegal have not been incorporated, so provision is not mandatory but directory. On point No, 2, it was held that since the departure of the procedure had not caused any prejudice to any party, the objection was not tenable. The petition was dismissed and it was observed : "It is, therefore, clear that this irregularity has not prejudiced any party. In these circumstances, we are not prepared to go to the extent of declaring the award to be vitiated, although we must make it clear that we do not approve of the procedure adopted by the Industrial Court in the present case. Where a Court consists of more than one person, all members of the Court should normally sit together or at least a majority of the Court should be present at all stages of the hearing of the dispute and participate in its adjudication."
' In view of the above authorities, we hold that, as the petitioner was in no way prejudiced by the cancellation of the allotment or the re-allotment of they plot, so, in the instant case, the order of cancellation of allotment and re-allotment of the plot would not be rendered invalid simply because the same were made by the Chairman alone, though, as pointed out elsewhere, the allotment in favour of the respondent was made by the Committee as is borne out from Annexure R-3 issued by the Secretary of the Committee.
9. We have carefully examined the application for cancellation and the affidavit and the order passed thereon. Syed Badi-uz-Zaman Shah had not, at that time, become the owner of the plot. He only secured prior eligibility to allotment and that too was subject to his paying the balance of the price which, till 1967, i,e, for a period of about three years, he had not paid. The Allotment Committee could otherwise cancel his allotment for his failure to make payment of the remaining amount or for his failure to construct the house. Apart from that, he, by his own free consent, requested the Chairman, Allotment Committee, to transfer the allotted plot from his name to the name of Mst. Surraya Begum, respondent, his wife. The order passed thereupon by the Chairman, Allotment Committee is a consent order, carrying out the agreement between the parties. It would be mis-nomer to term it as a cancellation order. This order is, in fact, a creature of an agreement, which would operate as estoppel. "A consent order creates an estoppel as much as a decree passed in invitum". For elucidation, we may refer a few authorities as follows : ' In case entitled Maharaja Dhiraj Sir Ramesh war Singh Bahadur v. Hitendra Singh (1), it was observed by Das, J. That : "A consent order raises an estoppel as much as a decree passed in invitum, so that where a particular relief is prayed for but the matter is settled by a consent order which does grant the relief prayed, the relief must be deemed to be refused. The same relief cannot again be claimed."
' Again in case entitled Deo La! Jha v. Bindeshwari Narayan Singh and another (2), it was held that a consent order raises an estoppel as much as a decree passed in invitum. 36 Born. 293 was also followed in this case. In case entitled Allah Bux Pindok and others v. Nusserwanji & Co. And others (3), it was held that a decree by consent of a competent Court until it is set aside raises an estoppel just in same way as a decree by default or after consent. Elaborating the point, it was held by Davis, J. C. That the right to institute a separate suit to set aside ,a decree passed by consent is limited and exists only in cases where the decree incorporates an agreement which is void or voidable at the instance of one of the parties to the suit on the ground of fraud, mistake, undue influence or other similar grounds which would invalidate a private agreement not incorporated in a decree and for the purpose of estopping any such ground evidence is always needed. But in the exercise of the writ jurisdiction, we need not enter into the question of evidence.
' AIR 1938 Nag. 132 was a case of arbitration. The point turned upon the effect of the award made in the arbitration. The defendants in that case wrote on the award as follows : "The Panchas have this day read out to us, all parties, a final decision about our dispute. Having ourselves read the written award of the
(1) AIR 1921 Pat. 131 (2) AIR 1929 Pat, 440
(3) AIR 1936 Sind 99 Panchas and having understood it, we agree to it, and accept it. So we have made signatures on it."
' It was held that "where a party to an award has not merely signed it as an award but also has acted under it, he is estopped from challenging it and it is not open to a Court to go into evidence which has for its purpose the impuning of such award".
10. In the instant case, the application moved by Syed Badi-uz-Zaman Shah, which is supported by an affidavit, was in fact an abandonment in writing. It is an implied agreement not to claim the priority right that had accrued to him by draw of lots. It is important to note that Syed Badi- uzZaman Shah did not choose to claim his right, if any, for a period of two years after this abandonment. A person who abandons his rights in writing is estopped from asserting his title against the purchaser whom he D voluntarily arms with the means of dealing with the land as legal and equitable owner. His privy are also estopped from disputing the title of a beneficiary under such an agreement.
' Moreover, it was an ex gratia act in which Syed Badi-uz-Zaman Shah ' himself invited the Chairman, Allotment Committee, to adopt a procedure which was extra cursum curiae and not contemplated by the Allotment of Land Act. He or his representative-in-interest is now estopped from blaming the Chairman for adopting such a procedure. We can draw some guidance from S. M. Makudam Muhammad v. T. V. Muhammad Sheikh Abdul Kadir and another (1), in which it was held by Pandurang Row, J. : "Where a party invites the Court to adopt a procedure which is not contemplated by the Civil Procedure Code and is in fact a procedure extra cursum curiae, he cannot afterwards turn round and say that the Court is to be blamed for adopting the very procedure which he invited the Court to follow. The doctrine of estoppel would apply to him. The judgment of the Court is in the nature of an arbiter's award, and as a general rule, no appeal from it would lie. Moreover where both the parties agree to the particular procedure being followed the decree passed in the suit must be deemed to be a consent decree and as such it is not open to either of parties to appeal from it."
11. The first allottee in the present case himself induced the Chairman, Allotment Committee, to cancel his eligibility to allotment and allot the plot in the name of his wife. He or, after his death, his heirs cannot subsequently turn round and say that the Chairman was wrong either in cancelling the allotment of the plot or in re-allotting the same to Mst. Surraya Begum at his instance.
' Besides, in the light of the circumstances of the instant case, neither Syed Badi-uz-Zaman Shah nor his son can be termed as an "aggrieved person" entitled to invoke the writ jurisdiction of High Court, as Syed Badi-uzZaman Shah had himself invited the Chairman to cancel his priority of eligibility to allotment. In support of this view, we may cite 1972 S CM R 613. The facts of the case were that the dispute between the parties was in respect of three joint holdings of agricultural land in which the appellant approached to the Chief Land Commissioner though revisional application.
These revisional applications were withdrawn as there was a compromise
(1) AIR 1936 Mad. 856 between the patties. This fact was not mentioned by the petitioner in his leave petition. It was held : "In view of the fact that the appellant suppressed this material fact from this Court, and the Court has a discretion in the matter of granting leave to appeal, the Court was entitled to refuse leave on the ground of suppression of facts. Furthermore, the parties having come to a compromise willingly the appellant cannot be regarded as an aggrieved person so as to entitle him to approach the High Court on a Constitution petition."
12. The learned counsel for the respondent vehemently argued that the petitioner, in para. 9 (4) of his petition, has claimed that payment of the entire price of the plot was made by the father of the petitioner but he was unable to produce any receipt while, on the other hand, the respondent has produced receipt of the payment which is Annexure R-5. On the basis of this, be urged that the petitioner misled the Court by making a wrong statement. He relied on 1969 SCMR 141. In this case the petitioner had suppressed some material facts in his petition. It was observed as follows : {{BLUR PAGE}} `'The learned counsel attempted to raise a number ofget! .Stints in this case. But in view of the fact that he did not COIL,' ,re the High Coutt with clean hands, we did not allow him tc Jo. We are satisfied that the petitioner did not state all the reveant fa' is before the High Court ; that he deliberately suppressed the farts that he had been arrested by the Iranian Authorities fcr abettiag h;s brother in a smuggling case and that for that reason he was asidered an undesirable person. In these circumstances, the 1-; d Court rightly held that he was not entitled to get any relief in the vait jurisdiction." {{BLUR PAGE}}
13. Respectfully agreeing with the above-mentioned, authorities, we hold that the petitioner was not justified in saying that the "oalance of the price of the plot was paid by his father. The stand taken in the rejoinder that it was from the paper found from the chamber of their father that they stated in the petition that the balance of the price was paid, by their father has not been proved by production of any such document on which they place reliance. As there is a clear proof that the balance of the amount was deposited by the respondent, it is not possible to deem this payment as one made by the father of the petitioner. A party in writ petition is expected to state facts after full verification. If some one chooses to rely on an unverified matter, he cannot escape the consequences of suppression.
' For the foregoing reasons we find no force in the appeal ; hence agreeing with the High Court we dismiss it.