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Civil Petition for Special Leave to Appeal No. 1388 of 1980, decided on 6th December, 1980.

(On appeal from order of Lahore High Court, dated 16‑9‑1980 in I.‑C.A. No. 75 of 1979).

Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 185(3) & 199‑‑Petitioner, Recruiting Agency‑‑Petitioner's request for renewal of licence declined by Authority‑‑Letter conveying rejection of his request for renewal received by petitioner very late‑ Petitioner making representation but on receiving no response thereto filing writ petition against Authority for declaration that refusal of respondent to renew licence was contrary to law and for direction to issue him a licence‑‑Petitioner's writ

dismissed by High Court on ground that he had an alternate remedy by way of appeal provided by rules and that he had not approached High Court with clean hands‑‑Petitioner's arguments, that he was not aware of order of authority rejecting his request for renewal, repelled by High Court on basis of record‑‑Finding of High Court based on rational basis and supported by record‑‑Finding that petitioner had not approached High Court with clean hands also based on cogent material on record‑‑No exception, held, could be taken to judgment of High Court refusing to exercise discretionary jurisdiction under Art. 199 of Constitution.

Ch. Muhammad Hussain, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Date of hearing: 6th December, 1980.

Facts briefly stated are that the petitioner, Messrs Bokhari Recruiting Agency, was granted recruiting agents license No. 892 on 20‑5‑1976 which was valid for six months up to 19‑11‑1976, and it was subsequently renewed up to 30‑6‑1977, but thereafter petitioner's request for the renewal was rejected under letter, dated 9‑7‑1977. According to the petitioner, however, it was only after

receipt of letter, dated 27‑3‑1978 that they became aware for the first time that their request for renewal of the licence was declined. The petitioner then made a representation, dated 6‑4‑1978 but getting no response thereto, they filed Writ Petition No. 3388 of 1978 in the Lahore High Court some time in June, 1978 praying for the declaration that the refusal of the respondent to renew the licence was contrary to law, and for the direction to be issued to the respondent to renew the licence. Learned Single Judge in the High Court who heard the petition dismissed it on the ground that the petitioner had not availed of the alternative remedy of an appeal provided by the rules against the order, dated 9‑7‑1977 and also that the petitioner not having approached the Court with clean hands, was not entitled to seek relief by means of the discretionary jurisdiction under Article 199 of the Constitution.

In support of this petition for special leave from the judgment of the High Court, Chaudhry Muhammad Hussain, Advocate submits that the High Court has erred in reaching the conclusion that letter, dated 9‑7‑1977 by which the renewal of the licence was refused was received by the petitioner, and High Court has also failed to appreciate the fact that the final order was passed by the Federal Government which was communicated under letter, dated 25‑8‑1977 and no further appeal was competent. Learned counsel further submits that the petitioner had the legal right to the renewal of the licence as the refusal was not based on "any solid footing".

The submission advanced by the learned counsel may first be examined in the light of the observations made by the High Court in this behalf by reproducing the relevant portion of the judgment of the High Court. It reads:‑

"the learned counsel. for the petitioner submitted that even the letter, dated 9‑7‑1977 was not received. He alternatively argued that representation. Lent to the Joint Secretary, Manpower Division should in any case be treated to be an appeal as required by above rule.

None of these contentions have any merit. In fact the petitioner is also guilty of concealment of material fact since he has not made any reference to the letter, dated 9‑‑7‑1977 and the receipt of that letter has been denied even during arguments before me. It is, however, established from his own letter, dated 28‑8‑1977 that he knew about the refusal of the Department to renew the licence on the ground of nil performance. This also established that the petitioner has not come to this Court with clean hands. The petition would be liable to dismissal on this ground also.

The letter, dated 28‑8‑1977 referred to above cannot be treated to be an appeal, nor it was intended as such. If it had been an appeal, it would have been sent to the Secretary and not to the Joint Secretary. A representation Annexure 'D' is said to have been sent to the Secretary but it is denied in the comments that any such representation was ever received. Mr. Abdul Haq Malik, Assistant Director, Bureau of Emigration and Overseas Employment who had brought the record persisted in his denial. In view of this I inquired from the learned counsel whether he had any postal receipt. The petitioner, however, stated that he could not make a categorical statement in this respect whether he would be able to produce any such receipt. It is, therefore, established that even this representation has not been sent. The petitioner not only has come with unclean hands but has tried to come directly to this Court without availing of the more adequate and beneficial remedy of appeal.

The facts as stated above prove that the petitioner knew his limitations that he might not be able to compete with other recruiting agents and secure any business. It was for this reason that in his letter, dated 28‑8‑1977 he had criticized his successful competitors and suggested that outside demand for recruiting of Pakistani workers must be entertained by the Government directly acid then distributed among the licensed agencies. It appears that he considered it otherwise futile to file an appeal or to try further for renewal of licence. Later he managed to have some contact with a Saudi Arabian Agency which wrote to him the letter, dated Safar 1398Icorresponding to January, 1978, annexed to the rejoinder. On receipt of this letter he filed a fresh pro forma for licence and pleaded ignorance of the earlier order declining the renewal which had throughout been within his knowledge. This could not give him a right to re‑open a transaction which was past and closed."

The High Court has repelled the argument advanced by the petitioner that he was not aware of the order contained in the letter, dated 9‑7‑ 1977 refusing to renew his licence on the basis of the record produced by the parties. It has been held that the petitioner was fully aware of the refusal of the department as this fact is established from a petitioner's own representation, dated 28‑8‑1977. Since this finding has been based on rational basis and is supported by the record, it is not open to further challenge in this petition. The finding that the petitioner had not approached the High Court with clean hands is also based on cogent material on the record, and, therefore, no exception can be taken with the impugned judgment of the High Court refusing to exercise the discretionary jurisdiction under. Article 199 of the Constitution.

M . Y . H . Leave petition dismissed.

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