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Writ Petition No. 274 of 1976, heard on 4th March, 1987.

---Art. 199--Constitutional jurisdiction, exercise of--Refusal by competent Authority to discharge its statutory duties provided justification to aggrieved party to invoke constitutional jurisdiction of High Court--Where however, circumstances of case do not justify exercise of such jurisdiction in favour of petitioner viz. where such petitioner has suppressed material facts, and has not come to Court with clean hands, constitutional jurisdiction, held, would not be invokable in favour of such petitioner--Extraordinary jurisdiction of High Court has to be exercised in aid of justice and not otherwise.

Administrator, Thal Development/ Chief Secretary to Government of the Punjab v. Mahboob Ali Khan 1986 S C M R 1927 rel.

Qadir Bakhsh for Petitioner.

Shabbir Ahmad Lali for Respondent No. 1.

Ahmad Nawaz Qasrani with Aslam Chhatha for L.Rs. Nos. 1 and 2 of Respondent No. 2.

Respondents Nos. 3 to 6: Ex parte.

This writ petition assails the orders, dated 4-2-1963, 26-8-1975 and 10-10-1975, passed respectively by the Urban Rehabilitation Officer, Lyallpur (now re-named as Faisalabad and will be referred to hereinafter as Faisalabad), Deputy Secretary, Housing and Physical Planning Department, Government of Punjab, Lahore, and the Secretary of the said Department.

2. The dispute pertains to plot No. 69/B, situate in Peoples Colony, Faisalabad, and the superstructure built thereon. This plot was allotted to the petitioner by the Urban Rehabilitation Officer, Faisalabad, on 30-5-1955. The possession of the plot was delivered to the petitioner on 10-6-1955. The petitioner got sanctioned the building plan in his favour in respect of the plot in question on 3-11-1956. The agreement of sale was executed in favour of the petitioner by the Housing and Physical Planning Department on 23-5-1962. The construction on the plot in question was got done by the petitioner through Barkat Ali, respondent No. 2, since deceased and represented by his legal representatives. Thereafter, an agreement was executed by the petitioner in favour of Barkat Ali about the sale of superstructure. It has, however, been contended by the petitioner that through the said agreement to sell, he only sold the unutilized building material for Rs.6,000 in favour of Barkat Ali. A rent note was also executed between the petitioner and Barkat Ali. The Physical possession of the plot and the structure built thereon was that of

3. On 4-2-1963, the Urban Rehabilitation Officer cancelled the allotment of the plot from the name of the petitioner on the ground that he transferred the plot without permission of the Department in favour of Barket Ali and thereby has violated the terms and conditions of allotment. On 22-5-1963, the said officer also issued a notice to. Barkat Ali requiring him to vacate the plot as he was considered to be in unauthorized occupation of the said plot.

4. The petitioner preferred an appeal against the order, dated 4-2-1963 passed by the Urban Rehabilitation Officer, but the same was dismissed by the Deputy Commissioner/ Chairman Housing Committee, Faisalabad, on 4-10-1965.

5. The petitioner then moved the Deputy Secretary, Housing and Physical Planning Department, Government of Punjab, calling in question the orders passed by the Urban Rehabilitation Officer and the Deputy Commissioner but his move failed on 26-8-1975.

6. Thereafter, an application was filed by the petitioner before the Secretary, Housing and Physical Planning Department, Government of Punjab, Lahore, which too failed and was dismissed on 10-10-1975.

7. It is noteworthy that, in the meantime, on the basis of rent note, the petitioner sought the eviction of Barkat Ali from the premises in question through an ejectment petition which he filed before a learned Rent Controller, Faisalabad, Barkat Ali claimed that he was not a tenant under the petitioner and was in occupation of the premises in his own right as an owner on the basis of agreement to sell executed in his favour by the petitioner. The learned Rent Controller came to the conclusion that relationship of landlord and tenant did not subsist between the parties. Consequently, the eviction application was dismissed on 13-1-1965. An appeal authority filed by the petitioner succeeded but in second appeal before the High Court, the order of the appellate authority was set aside and that of the learned Rent Controller was restored vide judgment, dated 25-11-1965 passed in S.A.O. No. 364 of 1965.

8. It has been contended on behalf of the petitioner that the basic order of cancellation of plot from his name passed by the Urban Rehabilitation Officer on 4-2-1963 was void ab initio as it was passed without affording opportunity of show cause to the petitioner. Such an order having been passed in violation of the principle of natural justice that no one should be condemned unheard, is alleged to be coram non judice. It has further been urged that, as a matter of fact, the Deputy Secretary, Housing and Physical Planning Department, as also the Secretary of the said Department, while dismissing the petitioner's applications did observe that Urban Rehabilitation Officer passed the order without service of notice on the petitioner but instead of setting aside the said order, they referred the petitioner to seek redress against Barkat Ali before a Civil Court, a Court of general jurisdiction. It has thus been canvassed that the Deputy Secretary and the Secretary, Housing and Physical Planning Department, Government of Punjab, Lahore, being statutory functionaries failed to exercise the jurisdiction vested in them regarding setting aside of the orders of cancellation of the plot in question passed by the subordinate authorities viz. the Urban Rehabilitation Officer and the Deputy Commissioner, Faisalabad. Reliance has been placed on Administrator, Thai Development/ Chief Secretary to Government of the Punjab v. Mahboob Ali Khan 1986 SCMR 1927 wherein it was held that refusal by competent authority to discharge its statutory duties provided the justification to the aggrieved part to invoke the constitutional jurisdiction of the High Court.

9. There can be no dispute about the principle of law enunciated by the august Supreme Court of Pakistan in the aforementioned judicial precedent, but the circumstances of this case do not justify the exercise of such jurisdiction in favour of the petitioner. As a matter of fact, the petitioner had already challenged the order of the Rehabilitation Officer whereby he had cancelled the plot from the name of the petitioner on the ground of violation of terms and conditions of allotment before the civil Court before moving the Deputy Secretary, Housing and Physical Planning Department. His suit was contested by Barkat Ali and after recording the parties evidence, the learned civil Judge found that the petitioner in violation of condition No. 15 of the allotment of plots parted with the possession of the plot without first obtaining the consent of the Government and transferred the same in favour of Barkat Ali. It was further found that a notice, Exh. D.1, was duly issued by the Urban Rehabilitation Officer to the petitioner before passing the order of cancellation. It was thus concluded that the plot was lawfully cancelled by the Urban Rehabilitation Officer. It was further found that the suit of the plaintiff was barred by time. Consequently, the same was dismissed on 3-7-1975. An appeal taken by the petitioner before a learned Additional District Judge was dismissed as withdrawn on 23-9-1975. The petitioner suppressed the factum of dismissal of his suit and appeal in his application which he moved before the Deputy Secretary and the Secretary of the Housing and Physical Planning Department. It has also been noticed that the applications which the petitioner moved before the Deputy Secretary and the Secretary of Housing and Physical Planning Department were in the nature of miscellaneous applications as the sale were time-barred as revision or appeal. There is also no substance in the petitioner's contention that the order of cancellation of plot from his name was passed by the Urban Rehabilitation Officer without affording opportunity of show cause to him as it has been held by the Court of general jurisdiction viz. the learned civil Judge, Faisalabad, that notice, Exh. D.1, was duly served on the petitioner before the order of cancellation of plot from his name was passed.

10. The petitioner, as a matter of fact, has not come to this Court with clean hands. He failed to mention in his constitutional petition that he had already moved the civil Court unsuccessfully. Obviously, the extraordinary constitutional jurisdiction of the High Court had to be exercised in aid of justice and not otherwise. In the circumstances, of the prevent case, it will not amount to advancing the cause of justice if the writ jurisdiction is exercised in favour of the petitioner.

11. In the light of what has been said above, the writ petition fails and is dismissed. No order, however, is made as to costs.

A.A./M-130/L Petition dismissed.

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