' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 12-5-2000, whereby the writ petition filed by the appellants, herein, was dismissed.
2. The brief facts giving rise to the present appeal are that the appellants are "A" class contractors, with no limit, and are registered with Public Works Department of Azad Government of the State of Jammu and Kashmir. They filed a writ petition in the High Court alleging that the Azad Jammu and Kashmir Assembly adapted the Act known as the Pakistan Engineering Council Act, 1976 (hereinafter shall be called the Engineering Council Act) by an Act titled the Pakistan Engineering Council (Extension of Scope and Functions to Azad Jammu and Kashmir) Act, 1986, (hereinafter shall be called as the adapting Act) alongwith rules, by-laws and other administrative orders made thereunder. According to the averments made in the writ petition, after the enforcement of the adapting Act, all powers which were previously enjoyed by the Azad Government of the State of Jammu and Kashmir stood transferred to the Pakistan Engineering Council and the Azad Government of the State of Jammu and Kashmir was not competent to issue any Notification or order under the law. Consequently, the appellants challenged Notification No,6091-17 of 1998, dated 8-10-1998, introducing, the pre-qualification system in the State as being without lawful authority and also on the ground that the same was violative of the adapting 'Act and the Interim Constitution Act, 1974; it was alleged that the said notification was discriminatory and was issued with ulterior motive to grant various construction works to the contractors of respondents' choice and deprive the appellants of bidding for the same. The writ petition was contested by the respondents on various grounds. The High Court, after taking necessary proceedings, dismissed the writ petition, inter alia, on the ground that the notification, dated 8-10-1998 issued by the Government was validly issued and the same was not violative of the Interim Constitution Act or any other law; it was further held by the High Court that the writ petition entailed dismissal on the grounds that the appellants, herein, were not aggrieved persons and that the same was hit by laches, apart from being improperly constituted. It is against the aforesaid judgment of the High Court that present appeal by leave has been preferred to this Court.
3. Sardar Muhammad Sayab Khalid, Advocate, the learned counsel for the appellants, has submitted that in fact the Engineering Council Act has not been adapted in Azad Kashmir by virtue of the adapting Act. According to the learned counsel, the phraseology employed in the adapting Act shows that only the functions of the Pakistan Engineering Council have been extended to Azad Jammu and Kashmir. He has contended that even otherwise, the bylaws made under the Engineering Council Act, 1976, were framed by the Pakistan Engineering Council in 1987 whereas the adapting Act was enforced in the year 1986. Thus, he has further contended that the bylaws on which the judgment of the High Court is based would not be deemed to have been enforced in the State because the Legislature had no power to enforce the bylaws which were made after the enactment of the adopting Act; the learned counsel has further contended that the High Court also committed an error in holding that the appellants were not aggrieved persons and that the writ petition was hit by laches. He has argued that the appellants being "A" class contractors with no limit were entitled to submit the tenders for works without going through the pre-qualification system, introduced by the aforesaid notification. According to him, as the impugned notification is tantamount to deprive the appellants of making bids through tenders, they would be deemed to be aggrieved persons within the relevant Constitutional provisions. He has further argued that the appellants became aggrieved as a result of proclamation published in the daily "Nawa-eWaqt" dated 9-12-1999, calling the applications for pre-qualification and the writ petition was filed in April, 2000, thus, even on that score the writ petition was not hit by laches. The learned counsel has further submitted that the impugned notification is a "continuing wrong" and, thus, the principle of laches cannot be pressed into service in the instant case. He went on to argue that as according to the proclamation published in the newspaper, the appellants had to show for pre-qualification that they were registered with the Pakistan Engineering Council, the cause of action arose to them from the said date and the writ petition was filed within few months of the said proclamation. Thus, the High Court was not justified to hold that the writ petition suffered from laches. The learned counsel has further submitted that the High Court has committed an error in holding that the appellants were neither discriminated against nor the said notification was violate of any fundamental right enshrined in the Interim Constitution Act, 1974. He has submitted that as the appellants were already registered as contractors, with no limits, the subsequent condition of pre- qualification was an unreasonable restriction on the profession of the appellants. He has further contended that the High Court has also committed an error in holding that the writ petition was not properly constituted because the attested copies of the notification and the proclamation published in the newspaper were not placed on the record. He has submitted that sub-rule (2) of rule 32 of the High Court Procedure Rules applies to an order of a Court subordinate to the High Court and not to the proceedings of writ taken by High Court. The learned counsel has also argued that the appellants made an application before the High Court to proceed against the Superintending Engineer, respondent No,3 under sections 193 and 199, A.P.C. For committing perjury but the High Court did not proceed against him without any sufficient reason. He has stressed that the High Court was bound to proceed against the said respondent No,3. He has referred to the following authority in support of his contention that the functions of Pakistan Engineering Council cannot be extended to the Azad Jammu and Kashmir territory:-- ' In a case reported as Messrs Jabeer Hotel, Mirpur v. Kashmir Council Islamabad 2001 PLC (C.S.) 11, it has been held that the mere use of word extension in the relevant enactment does not mean that the Act was not adapted in the State. It was further observed that particular words are not necessary for adapting an enactment; only necessary condition is that the Legislature intended to adapt a law by an enactment. It was held that the Act known as the Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980, which was adapted in Azad Jammu and Kashmir but the civil servants performing duties in the relevant institution cannot legally perform the duties in Azad Kashmir because they were subordinate to the Government of Pakistan and not to the Azad Government of the State of Jammu and Kashmir or the Azad Jammu and Kashmir Council; under the Interim Constitution Act, the powers could not be delegated to such functionaries. The authority is not relevant to the present case because the impugned notification was issued by the Azad Government of the State of Jammu and Kashmir and not by the Engineering Council of Pakistan; besides, even otherwise, no such point was raised in the writ petition or argued before the High Court as would be seen in the later part of this judgment.
4. In reply, Raja Muhammad Hanif Khan, Advocate the learned counsel for the respondents, has argued that the learned counsel for the appellants is making out a case which is contrary to the one which was set up by him in the writ petition and subsequently was argued in the High Court. He has contended that the case set up by the appellants in the writ petition was that after the enactment of the adapting Act, 1986, the powers to make orders and issue notifications etc. Have been transferred to the Pakistan Engineering Council and, thus, the Azad Government of the State of Jammu and Kashmir had no competence to issue the notification dated 8-10-1998. The learned counsel has referred to paragraphs 2 to 5 of the writ petition in support of his contention; the case of the appellants in the High Court was that it was only Pakistan Engineering Council which was competent to issue an order or notification and not the Azad Government of the State of Jammu and Kashmir. He has further referred to paragraphs 4 and 6 of the judgment of the High Court in support of his contention that the same case Was argued before the High Court as was set up in the writ petition. But in the appeal, the learned counsel for the appellants has argued that the Engineering Council Act or by-laws and rules cannot be deemed to have been adapted in Azad Jammu and Kashmir in view of the phraseology employed in the adapting Act. The learned counsel has referred to paragraph 6 of the judgment of the High Court, wherein it has been observed that it is admitted by the parties that the Engineering Councils Act, rules and by-laws framed thereunder have been adapted in the State. Thus, the counsel for the respondents has argued that the counsel for the appellants is debarred from taking altogether different stand which is also contradictory to one pleaded and argued by him before the High Court. He has submitted that the principle of estoppel by conduct is fully applicable and, thus, the submissions made by the learned counsel for the appellants do not merit consideration. He has further submitted that it is also admitted by the appellants that they did not apply for their prequalification in response to notification dated 8-10-1998 or after the application of the proclamation in the newspaper in December, 1999. Thus, they cannot be regarded to be aggrieved persons to challenge the said notification by invoking the writ jurisdiction. The learned counsel for the respondents has maintained that if the appellants did not apply for the prequalification, how they complain that they were discriminated against or any embargo was placed on them to practice the profession of their choice. The learned counsel has also argued that the appellants had challenged the notification requiring prequalification of the contractors dated 8-10-1998 by filing writ petition on 25-4-2000, after more than two years and, thus, same was clearly hit by laches. The learned counsel has further submitted that even assuming for the sake of argument that the cause of action arose to the appellants after the publication of the proclamation in the newspaper in December, 1999, even then the writ petition was filed about four months after the said publication arid, thus, suffered from laches. The learned counsel has further submitted that in the High Court, the appellants, in their replication took the stand that it was not necessary for them to explain the delay in filing the writ petition but before this Court the learned counsel for the appellants has argued that as the cause of action arose to the appellants after the publication of the proclamation, the writ petition was not hit by laches and that as this was a continuing wrong, the principle of laches is not applicable to it. The learned counsel has submitted that these explanations were not given by the appellants in the High Court and, thus, the same cannot be pressed into service to overcome the bar of laches at- a belated stage. According to the learned counsel, even otherwise, the aforesaid explanation given by the learned counsel for the appellants has no substance because if a person is aggrieved by an order and he does not challenge the same within the reasonable time, he cannot cross the bar of laches by arguing that this was a continuing wrong. According to the learned counsel, the principle of continuing wrong is applicable to writ of qua warranto and not to the cases like one in hand. The learned counsel has submitted that the argument of the learned counsel for the appellants that as the by-laws were framed in the year 1987 while the adapting Act was enacted in the year 1986, the same could not be deemed to have been enforced in the State, was not raised in the High Court and, as such, the same cannot be raised before this Court, especially so when it was admitted before the High Court that all laws, rules and by-laws have been duly adapted in the Azad Jammu and Kashmir as has been stated earlier. The learned counsel has submitted that reasonable restriction on a profession for its regulation is permissible under section 4(8) of the Interim Constitution Act and the condition of pre-qualification is nothing but an act of regulation of profession and the same cannot be regarded to . Be violative of Interim Constitution Act. He has contended that pre-qualification system was enforced not for any one group or class of the contractors but it is applicable to all the contractors whether they are "A" class contractors or belong to any other category. Therefore, there is no question of discrimination in the instant case. The learned counsel has further contended that rule 32(2) of the High Court Procedure Rules is incorporated in the chapter of applications for enforcement of fundamental rights of the said rules which deals with writ jurisdiction of the High Court and not to the civil proceedings initiated in the Courts, subordinate to the High Court. Thus, he has argued that the learned counsel for the appellants is not correct in arguing that the aforesaid rule is not applicable to the writ petitions; in fact the said rule is only applicable to the writ proceedings initiated in the High Court. He has also submitted that it was not incumbent upon the High Court to initiate the proceedings under sections 193 and 199, A.P.C. Against respondent No,3. The learned counsel has, argued that it was for the High Court to see as to whether any false statement has been made before it or not and that whether it was expedient to launch any criminal proceedings against the concerned respondent. Thus, he has argued that this Court cannot legally direct the High Court to file complaint against respondent No,3, especially so when the writ petition filed by the appellants was dismissed and the stand taken by the respondents, including respondent No,3, has been accepted and the High Court did not hold that the said respondent made a false statement before it. The learned counsel has cited following authorities in support of his contentions:-- ' In a case reported as Azad Jammu and Kashmir Government v. Gohar Rehman 1996 SCR 112, it has been held that as only the Deputy Commissioner who was Chairman of the Allotment Committee was impleaded as a party and the members of the Allotment Committee were not arrayed as respondents in the writ petition, the same was held not properly constituted and was dismissed.
' In a case reported as Kh. Ghulam Qadir v. Divisional Forest Officer Demarcation 1996 SCR 161, it has been held that as the appellant who was necessary party was not arrayed as a party in the writ petition, the same was dismissed as being incompetent.
' In a case reported as Abdul Qadeer v. AJ&K University 2000 SCR 36, it has been observed that the point not taken in the writ petition specifically cannot be taken for the first time in the Supreme Court.
' In a case reported as Abdul Qadir v. Abdul Karim 1999 PLC (C.S.) 947, it has been held that acquiescence and estoppel are two recognized grounds in presence of which the writ jurisdiction cannot be invoked for obtaining the relief. A litigant cannot take different stands in the litigation at different stages.
' In a case reported as Azad Government of the State of Jammu and Kashmir v. Haji Summandar Khan 1995 MLD 1350, it has been held that if any reasonable explanation is not given for laches in filing a writ petition, the same is liable to be dismissed on this sole ground even if the order challenged by filing the writ was a void order.
5. We have given due consideration to the arguments raised at the Bar. The moot point is as to whether in the instant case, the appellants are making out a new case which they had not set up in the High Court and, thus, they are estopped from doing so. After closely perusing the writ petition, particularly paragraphs 2 to 5, and the judgment of the High Court, we have no hesitation in holding that the learned counsel for the appellants has argued a case which is contradictory to one he set up and argued in the High Court. A plain reading of the writ petition would reveal that in the High Court the case of the appellants was 'that after adapting the Engineering Council Act, by virtue of the adapting Act, the powers to make orders or issue notifications have been transferred to Pakistan Engineering Council and the Azad Government of the State of Jammu and Kashmir had no jurisdiction to issue the notification dated 8-10-1998, whereas in this Court, he has taken altogether different stand, i.e, that the Pakistan Engineering Council Act and the rules framed thereunder have not been adapted in the Azad Jammu and Kashmir rather only the functions of the Pakistan Engineering Council have been extended to the territory of the Azad Jammu and Kashmir; according to the learned counsel, the word "extension" used in the adapting Act would reveal that only the functions of Pakistan Engineering Council have been extended and the Engineering Council Act and the rules framed thereunder have not been enforced in the State. It hardly needs much discussion that the case set up by the learned counsel for the appellants in this Court was not his case in the High Court. Thus, the appellants cannot be permitted to plead both hot and cold in the same breath by varying their case in this Court. It is well-settled principle of law that the point not taken by a party in its pleadings, cannot be considered even by the Court in which the proceedings are initiated in the beginning, whereas in the present case, the appellants had made a departure from their case which they had set up in the High Court; instead they have pleaded a case which is contradictory to one set up by them in the High Court.
6. The learned counsel for the respondents has also referred to the Schedule II to Rules of Business, where in item 13, under the head "Communications and works", the Department of Communication and Works, is empowered to deal with subject to pre-qualification and enlistment of the contractors and the regulation of their conduct. Thus, the learned counsel has argued that irrespective of the adapting Act, the Communication and Works Department is otherwise competent to lay down rules for pre-qualification and enlistment of the contractors. Therefore, he has argued that it is not correct to say that the Azad Government of the State of Jammu and Kashmir was incompetent to issue the impugned notification.
7. So far as the question of laches is concerned, it may be stated that in fact the pre-qualification system was introduced by virtue of notification dated 8-10-1998 whereas the writ petition has been filed after about two years of the same. It has never been the case of the appellants in the High Court that they were not aware of the aforesaid notification; rather they took the stand that it was not necessary for them to explain the laches. In this Court, they have given explanation which has been already stated above, i.e, the cause of action arose to them from December, 1999 when the proclamation was published in the newspaper. We are afraid we cannot subscribe to the contention of the learned counsel for the appellants. The act of publication of proclamation is nothing but a step towards the implementation of the notification dated 8-10-1998. The contention of the learned counsel for the appellants is that as one of the conditions which the appellants had to satisfy for pre-qualification was to be registered with the Pakistan Engineering Council, they became aggrieved by the proclamation and thereafter challenged the notification dated 8-10- 1998. If it was so, then the appellants should have challenged the validity of the proclamation published in the newspaper on 9-12-1999 and not the notification dated 8-10-1998 but they have challenged the notification dated 8-10-1998 and not the proclamation dated 9-12-1999. Even if we assume for the sake of argument that the question of laches is to be considered from the date of publication of the proclamation, i.e, 9-12-1999, in that case, too, the writ petition is hit by laches because the same was instituted after about four months of the publication of the proclamation. It may be stated that in pursuance of the proclamation, many contractors applied for prequalification and after going through the process of pre-qualification were allotted works which they completed but the appellants, herein, kept mum and did not take any step even to apply for pre-qualification or for challenging the proclamation dated 9-12-1999. It may be observed that event the delay of few months in filing the writ petition in some cases was treated as (aches and was not condoned by this Court. A reference may be made to a case reported a Gul Bhar v.
Revising Authority MDA 1993 SCR 327, wherein the laches of two months was not condoned and the writ petition was dismissed. Similarly in case reported as Muhammad Hussain v. Zafar lqbal 1994 SCR 77 and Azad Government of the State of J&K v. Haji Summandar Khan 1995 MLD 1350, the laches of few months was not condoned. Thus, we are of the opinion that the writ petition filed by the appellants, herein, was rightly held by the High Court to have been hit by laches.
8. The contention of the learned counsel for the appellants that the notification, dated 8-10-1998 was violative of Fundamental Rights Nos.8 and 15 guaranteed by virtue of section 4 of the Interim Constitution Act, 1974, has no substance for the simple reason that in the first place, the appellants did not apply for prequalification and even otherwise, the regulations of the profession of contractors by calling upon them to satisfy the particular conditions for prequalification cannot be regarded as unreasonable restriction to practise their profession as is evident from the provisions of the Fundamental Right No,8. No authority has been cited by the learned counsel for the appellants to show as to how the condition of pre-qualification was an unreasonable restriction on the profession of the appellants in view of the said provisions to the said right.
9. Next, the contention of the learned counsel for the appellants that the High Court was not justified to refuse to initiate the proceedings against respondent No,3 under sections 193 and 199, A.P.C., for committing perjury. It may be observed that it was for the High Court to see as to whether any perjury was committed in relation to the proceedings before it or not. It was for the High Court to see as to whether it was expedient to proceed against the concerned respondent or not. The discretion to proceed against a person for making perjury can only be made in case like one in hand if the Court concerned gives finding that in fact the perjury was committed before it. In the instant case, when the writ petition filed by the appellants, herein, was dismissed and the contentions of the respondents were upheld, how the High Court could proceed against the respondent, especially so when it has been observed by it that it was not necessary to proceed against the concerned respondent in the circumstances of the case. It may be observed that before making a complaint in such a case. The Court has to hold an inquiry under section 476, Cr.P.C., after giving notice to the person who allegedly made the perjury as to why a complaint should not be made against him. However, no such occasion arose in the instant case because the allegation of perjury was repelled by the High Court. Thus, we see no force in the contention of the learned counsel for the appellants that a direction should be issued to the High Court to proceed against respondent No,3 for committing perjury before it.
10. The High Court correctly came to the conclusion that violation of sub-rule (2) of Rule 32 of the High Court Procedure Rules has been committed because the attested copies of the notification dated 8-10-1998 and the proclamation published were not placed on the record. Only photostat copies of the same were placed on the record. The learned counsel for the appellants was not correct that the aforesaid rule is not applicable to the writ proceedings. In fact the aforesaid rule is applicable to the writ proceedings of the High Court and not only to the civil proceedings in which an' order is passed by the Courts subordinate to the High Court.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.