P L D 1967 Lahore 762 (PLP)

CHAUHAN, J.‑This is a Letters Patent Appeal against the order of a learned Single Judge, whereby he dismissed the petition of the appellant under Article 98 of the Constitution On the ground of laches and delay. The copy of the impugned order of the Settlement Commissioner, filed along with the petition, bears the date of announcement of the order as the 17th of June 1961. The stamp over the said order also shows that he applied for the copy of the 3rd of July 1961 and he got it on the 22nd of December 1961, two days after the preparation of the copy. The petition was filed in the High Court on 5‑3‑63 and was dismissed on the ground of laches and delay on the 7th of April 1964. The petitioner has come up in Letters Patent Appeal against the said order.

2. The learned counsel for the appellant has urged that a person can approach High Court under Article 98 of the Constitution, when, according to the said Article itself, he has no other adequate remedy. He submits that if in a case where an aggrieved party can knock at no other quarters for relief, the delay in filing the petition cannot by itself be sufficient ground for rejecting it outright. He further submits that neither the Constitution itself, nor any other law or the statute, for the time being in force in Pakistan, has specified any period of limitation, within which a petition under Article 98 must be filed in the High Court. 1n these circumstances, he maintains that the High Court is not justified in throwing out writ petitions summarily on‑as he calls it‑artificial and self‑imposed ground of laches and delay. He submits that the only limitation placed on the exercise of these powers under Article 98 is the existence of another adequate remedy. Once that condition is fulfilled, then it being a right of a person under Article 2 of the Constitution, to be governed by law and law alone, no wrong should be suffered to remain in-corrected or un-redressed. The objections aforesaid being of a fundamental character and the points raised being of far‑reaching importance, which are likely to guide and regulate the practice of this Court in the entertain ment and disposal of petitions under Article 98 of the Constitution, I intend to deal with them in little detail.

3. Before dealing with the points aforesaid, it is necessary to examine the nature of jurisdiction conferred on the High Court under Article 98 of the Constitution. After the nature and scope of this jurisdiction is traced out, it will be easier to find out as to how that type of jurisdiction is exercised and what are the well‑recognised judicial principles which regulate it. In Mahboob Ali Malik v. The Province of West Pakistan and another (P L D 1965 S C 254), this Court pointed out while comparing the old urisdiction of the High Court for issuing writs with the present Article 98 of the Constitution, that the scope of writs was not defined in the earlier Constitutions, but had to be gathered from the text‑books on the subject, and from cases decided in England and other countries where writs under those names (namely, mandamus, prohibition, certiorari and quo warranto), are issued. The present Constitution by its Article 98 appears to have made an attempt to reduce into self‑contained propositions that which was regarded as the substance of those four writs. In the course of their evolution some distinguishing incidents had come to attach separately to some of those writs. Those distinguishing features, it seems, have not been incorporated in Article 98, apparently because they were not regarded as being of the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various writs have thus become more uniform. As a consequence, in some cases, the field covered by the earlier writs, has become somewhat enlarged; and in others it has become somewhat curtailed. The writ of certiorari for example, was available originally in respect of judicial, quasi judicial acts only. It was not available in respect of non judicial determinations. Article 98 has not preserved any such distinction, with the result, that all orders passed in excess of lawful authority, whether by judicial, quasi judicial or non judicial functionaries are equally liable to be declared as being of no legal effect. On the other hand, the requirement that this) jurisdiction should be exercised only if there is no other adequate remedy, has become equally applicable to all the cases falling under Article

98. In English Law, apparently, this requirement was insisted upon rigorously only in relation to mandamus. In relation to certiorari, it was frequently relaxed. Article 98, however, is not susceptible to any discrimination between In mandamus and certiorari on this point. In Muhammad Khan v. Additional Commissioner and Commissioner Frontier Crimes Regulation, Quetta Division, Quetta and others (P L D 1964 Lah. 401), this Court, again laid down, while dealing with the various clauses of Article 98 of the Constitution, that the first or second clauses of Article 98(2)(a), "are not confined to cases where the person, against whom the order is proposed to be passed, has been performing judicial or quasi judicial functions. Administrative or executive authorities also fall within the orbit of, the jurisdiction conferred by the above Article on the Superior Courts. The provisions of Article 98 are in this respect wider in scope than its predecessors, with the result, that the Superior Courts now exercise a wider jurisdiction . . . . " To the same effect is the dictum of their Lordships of the Supreme Court in Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673) that administrative or executive authorities now equally fall within the ambit of ‑the jurisdiction of the High Court under Article 98 of the Constitution.

4. In a recent case Mian Jamal Shah v. The Member, Election Commission, etc. (P L D 1966 S C 1) the Hon'ble Judges of the Supreme Court expressed themselves as follows with regard to the nature of jurisdiction conferred by Article 98 of the Constitution on the High Court. Cornelius, C. J., wrote as follows: "Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as a continuation of the power conferred upon the Supreme Court and the High Courts by Article 2(4) of the (Laws Continuance in Force) Order, 1958, to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, is in my view an error. The Constitution of 1956 gave similar power to the Supreme Court and the High Courts by expression in more than one Article, but it is well‑recognised that by the abrogation of the Constitution, and the introduction of Martial Law, a wholly new source of plenary authority came into existence and it was from this new source that the new power in Article 2(4) of the Order of 1958 was derived. Again, when the Martial Order Law was brought to an end, the Laws (Continuance in Force) was revoked with effect from the date of commencement of the Constitution of 1962 which itself was given to the country by the President `in exercise of the mandate given to me on the Fourteenth day of February, one thousand nine hundred and sixty, by the people of Pakistan.' This again was a wholly new source of plenary authority and it was from this source that simultaneously the High Courts were given jurisdiction under Article 98." And at another place his Lordship proceeded to write as follows "that any assumption that the power under Article 98 is something inherent in the High Court, something of earlier origin than the Constitution of 1962, is one that cannot be supported." Mr. Justice Kaikaus held as follows: "In the Constitution of 1956, jurisdiction for judicial control had been conferred on the High Courts in terms of English writs of certiorari, mandamus, etc. Similar was the provision in the Laws (Continuance in Force) Order of 1958. The defect in this method of conferment of jurisdiction was that whenever a question arose as to the limits of this jurisdiction reference had perforce to be made to the scope of various writs in England The English judgments were not uniform and in fact some of them were hard to reconcile. It was desirable, therefore, that the jurisdiction of the High Court be stated without reference to the English writs and in words which it would not be difficult to construe. This is what I presume, the draftsman of the present Constitution attempted to do in Article 98."

5. The upshot of the above discussion is that the jurisdiction under Article 98 cannot be said to be a continuation of the old jurisdiction which existed in the Laws (Continuance in Force) Order, or the late Constitution of 1956, etc. This is a new jurisdiction which is self‑contained in itself.

6. This is about the essence of this jurisdiction. The next question is that holding that it is a new jurisdiction, what is the type of this jurisdiction and how is it to be exercised. Is it a discretionary jurisdiction and is it an equitable jurisdiction. I would have gone into these points in detail to achieve the same result, but in view of the dictum of their Lordships of the Supreme Court in The University of Dacca v. Zakir Ahmad (P L D 1965 S C 90), wherein it has been held that this jurisdiction is a discretionary jurisdiction, l need not labour the point further. In the said case, it was held‑ "the power of issuing orders and directions under Article 98 of the Constitution is discretionary and it cannot be disputed that the discretion must like all other,;? judicial discretions be exercised in accordance with reasons‑and on sound judicial principles." Similarly in Azizur Rahman Chowdhury v. M. Naziruddin and five others (P L D 1965 S C 236), which was a case under Article 98 of the Constitution, the Supreme Court observed as follows: "We are also in agreement with the High Court that the circumstance that the appellant was neither qualified to be elected a Director nor had at any stage offered himself for election as such Director nor was even present at the meeting summoned' for the election of the Board of Directors, disentitled him to seek the writ of quo warranto which was not a writ of course. The Court from which the writ was sought was entitled to enquire into the conduct and motives of the appellant for such a writ and if the information was considered to be merely of a vexatious nature the Court was entitled to refuse to exercise its discretion in favour of the appellant. Thus where the issuance of the writ would disturb the peaceful and orderly functioning of a corporation, the Court is entitled to refuse the writ on the ground that to do so would be merely vexatious, particularly, where its consequence would be, as in the present case, to place the Company back in the hands of those who were mismanaging its affairs and illegally removing its assets to another country." In view of the above law, as declared by the Supreme Court, it' has become clear that power to issue orders and directions under'! Article 98, is a discretionary power. The relief available under this Article, I would hold, is an equitable relief also. It is well‑known maxim that equity acts where law fails. The gist of Article 98 is that when there is no other adequate remedy then one can have resort to the remedy available under this Article. In this way, it provides a remedy to a person who is otherwise remediless. From this point of view, this jurisdiction fits in the maxim of the equity‑that equity acts where law fails and can rightly be called as an equitable jurisdiction.

7. Having found that the power conferred under Article 98 of the Constitution is discretionary power of the High Court and the jurisdiction contained therein is also a kind of equitable jurisdiction, it has become easier to find as to what principles are to be kept in view in discretionary and equitable reliefs. On a true analysis of Article 98 of the Constitution, it will be seen that the reliefs which can be granted are of the kind of. declaratory reliefs and of the kind of injunctions, botl0' mandatory and prohibitory, and of the kind of quo warranto and habeas corpus. We have ample authority on the subject that in such types of cases what principles should guide a Court. Some of these principles are as follows:‑ (a) That the Court will not exercise its discretion in favour of a petitioner who deliberately withholds material facts and makes deliberate and false representation; See Sind Industrial Trading Estate v. First Assistant Judge, Hyderabad and others P L D 1960 Kar. 826 and Dalmia Cement Co. Ltd. v. District Local Board, Karachi P L D 1958 Kar

211. The reason for this rule is the inherent power of a Court to prevent an abuse of its process. (b) The discretion will not be exercised when the petitioner has been himself instrumental and actively participating in the illegality of which he complains. As for example was the case) in Ghulam Mohyuddin v. C. S. C. and others P L D 1964 S C 829, where a person filed a review as well as a revision under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and when the decision in the review went against him, he tried to turn round and say that since he had filed a revision, the review proceedings, according to the relevant law on the subject, could not have proceeded with and were without jurisdiction. The Supreme Court refused to exercise a discretion in favour of such a petitioner, who had himself been assisting in the commission of an illegality; (c) Discretion will not be exercised in such cases where, even if the declaration prayed for by the petitioner is granted, the respondent authority would be in a position to defeat it. As for example was the case in Sh. Rehmatullah v. D. S. C. and others P L D 1963 S C 633 where though a particular action of Government in selling property was found to be defective, Court refused to set aside that order on the ground that even if set aside, the Government determined as it was to sell, would again sell it and thus defeat the orders of the Court; (d) Discretion will not be exercised in favour of a petitioner who cannot himself benefit by the order given by the Court.' As for example, where a petitioner himself has no right or title, but he wants to challenge the title of the respondent alone. This is based on the principle that a plaintiff must succeed on the strength of his own title and not on the weakness of the title of his adversery. An illustration of this is a case reported in P L D 1965 Lah. 672, which in turn refers to P L D 1958 S C (Pak.) 437, P L D 1962 Pesh. 186, P L D 1964 Lah. 388 and Civil Petition for Special Leave to Appeal No. 172 of 1964; to the same effect are the observations of their Lordships of the Supreme Court in Civil Appeal No. K‑20 of 1963, Muhammad Ismail and others v. The Chief Settlement Commissioner of Pakistan and others, wherein it was held:‑ "In our view, furthermore, the High Court was fully justified in refusing to interfere in the exercise of its special jurisdiction under Article 98 of the present Constitution at the instance of the appellants who were indicted into the premises as tenants by the transferee Abdul Ghafoor himself and were not in any way entitled in their own individual rights to the transfer of the said vacant plot, under any of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) or its Schedules or the Scheme framed there under." (e) Discretion will not be exercised in case where though impugned order may be technically incorrect but setting it aside would be inequitous. In such circumstances, therefore, where substantial justice has been done, the Court will overlook the technicalities and will not disturb the order in question in any case. This was so held by the Supreme Court in Civil Appeal No. 36 of 1964 Syed Masood Akhtar v. The Chief Settlement and Rehabilitation Commissioner where B. Z. Kaikaus, J., with whom the other Lords agreed observed:‑ "So far as the appeal of Mst. Mahmoodah Begum is concerned, the only point urged before us is that Mst. Mahmoodah Begum should have been given a choice as to the transfer of one of the two portions into which the house had been divided. It is urged that under paragraph I of the Schedule when the house had been divided into two houses she was entitled at her option to choose one of them. We are of the opinion that this contention, even if there be any force in it is a technical one. The Chief Settlement Commissioner has come to a decision which is substantially just."; (f) Discretion will not be exercised in favour of a petitioner who has been guilty of laches and delay. In the present case, I will deal only with the ground of laches and delay and earlier examples, which, of course, are not exhaustive, I have given simply for the sake of illustration that discretionary reliefs are often controlled by above‑noted types of considerations.

8. In the following two cases, it has been held that though the proceedings under Article 98 are not proceedings in certiorari, mandamus, prohibition and quo warranto, but analogy of principles which regulated their grant, holds good for exercise of jurisdiction under Article

98. In Shamsul Husnain Haider v. Mir Ghulam All Khan Talpur and others (P L D 1963 Kar. 588), it was held as follows: "This conduct of the petitioner has a special significance in these proceedings, because on the analogy of the common law view with respect to certiorari, acquiescence is a complete answer to the charge of irregular procedure and even to irregular assumption or exercise of jurisdiction; See the King v. Williams and others (1914) 1 K B

608. These proceedings are not proceedings in certiorari but the analogy should hold good because we are called upon in exercise of high supervisory jurisdiction to interfere for rectifying an alleged illegality." In Akhtaruddin Khan v. Province of East Pakistan and others (P L D 1963 Dacca 1001), at page 1004, it was held as follows:‑ No period of limitation has been prescribed by law with regard to the seeking of any relief sought for under Article 98 of the Constitution just as there was no law of limitation applicable to the issuance of prerogative writ by this Court or an application of an aggrieved party. It has, however, been consistently held that an aggrieved party, seeking a speedy relief such as the issuance of prerogative writ, given in summary proceedings, must show due diligence in asking for such relief. The right to seek relief under Article 98 of the Constitution has not been described as a right to invoke the issuance of prerogative writs; but nonetheless, it incorporates substantially relief of similar nature. The relief which can be given by this Court under Article 98 is also an extraordinary relief provided by the Constitution. This is given in a summary proceeding in a manner which is similar to that by which writs have been issued by this Court. We cannot, therefore, lose sight of the fact that the petitioner has been guilty of undue delay and laches in approaching this Court for a speedy relief in a summary proceeding."

9. If the general principles which were applicable to the exercise of discretion in petitions of writs of certiorari, mandamus, prohibition and quo warranto are to be made applicable then the position is quite clear, that the delay in putting in application for such relief has always a great bearing in the exercise of discretion in granting those writs. In The King v. Stafford Justices ((1940) 2 K B 33 (C A)), it was held, that the Court has always a discretion to refuse an application if there has been an undue delay in bringing it. In this case, it was argued that even if the petitioner be a person aggrieved, he was not entitled ex debito justitiae as he had by his conduct precluded himself from obtaining a writ by reason of delay. In such cases the grant of writ of certiorari was discretionary. The Court refused the application on the ground that it was belated and Lord Greene M. R. observed: "Now in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well‑known and settled that in certain circumstances‑I will not say in all of them, but in a great many of them‑the Court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way and if a Judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion, In the present case the circumstances are indeed remarkable. Before examining them, I should perhaps make two short references to the authorities which have been cited before us in support of my statement of what I conceive to be the law. In the first place, in Reg. v. Sheward (1880) 9 Q B D 741 & 742, a decision of this Court, Barmwell, L. J stated in terms: `the granting of a certiorari is discretionary'. In Reg. v. Surrey Justice L R 5 Q B 466, a decision of the Divisional Court of the Court of Queen's Bench, Blackburn, J., delivering the judgment of the Court said (L R 5 Q B 466 & 473), `where the party grieved has by his conduct precluded himself from taking an objection, the Court will not permit him to make it as in Reg v. South Holland Drainage Committee' (1838) 8 Ad. & E 429). It is true that he goes on to say: `In other cases where the application is by the party aggrieved, so as to answer the same purpose as a writ of error, we think that it ought to be treated, like a writ of error, as ex debito justitiae; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong), but comes forward as one of the general public having no particular interest in the matter, the Court has a discretion and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it at the instance of such a person'. Then towards the end of the judgment, he says: `therefore, we think that, in exercising our discretion, we must see whether the present applicant is in the condition of a person grieved, applying for the certiorari to remove an order made without jurisdiction which affects his interest; and we think he is. I do not read the observations in that judgment with reference to the right of the party aggrieved ex debito justitiae as being in any way inconsistent with what I have stated. It merely means that unless there is something in the circumstances of the case which make it right to refuse the relief sought, the Court will grant it and that that is the way in which the Court will and must on ordinary principles exercise its discretion."

10. Ferris in his famous book. The Law of Extraordinary Legal Remedies (1926 Edition), in Paragraph 228, while dealing with mandamus and the question of ]aches writes as follows :‑ "

228. Time for bringing‑]aches, limitations, Acquiescence and Estoppel.‑Some cases hold that the right to mandamus, if not brought within a reasonable time, is barred on the theory of analogy of statutes of limitation in civil cases, or because it would be prejudicial to respondent; other authorities on the ground that it shows acquiescence and an abandonment of the right to complain; others that laches is a fact or circumstances the Court may consider in exercising its discretion respecting the issuance of the writ State ex rel Eakin v. Delaware (Fire Co., 117 Atl. (Del.) 129). All seems to agree regardless of the theory, that if the proceeding is not brought within a reasonable time after the alleged default or neglect of duty and such delay is not satisfactorily explained, the Court may, in the exercise of its discretion, refuse its issuance (Note 20 Ann. Cas. 1114); Matter of Eastern Cherokees, 220 U S 83, 31 S C 373; Preston v. Chicago 246 III 26, 92 N E 591: Teeple v. State 171 Ind. 268, 86 N E 49; Louisiana R. Co. v. Coushatta 122 La. 1079, 48 So. 532; People v. Willcox 60 Mix. 329,112 N Y S 341: Munson v. Terrell 101 Tex. 220, 105 S W 1114). This is particularly so when to grant the writ, after such delay, would work a prejudice to the party to be affected thereby (State ex rel Chase v. Graves 192 N W (Nebr.) 224). Mandamus is generally regarded as not embraced within statutes of limitations applicable to ordinary actions, but as subject to the equitable doctrine of ]aches (United States ex rel Arant v. Lane 249 U S 367, 39 S C 293, 63 Led. 650; Duke v. Turner 204 U S 623, 628, 51 Led. 652, 654, 27 S C 316, 9 Ann. Cas. 757). It seems well‑settled that the reason mandamus will not be issued unless asked for within a reasonable time after the wrong happened of which relator complains, is not because of any statute of limitations but because Courts have discretion in issuing the writ and in the exercise of that discretion will refuse mandamus if the claim has been allowed to become stale without any excuse shown for the delay and because the relator has apparently acquiesced in the wrong complained of (State ex rel Eakin v. Delaware Fire Co., 117 Ad. (Del.) 129; 18 R C L P 335, Sec. 286; 14 Am. & Eng: Encyc. Law, p. 107; Elliot, Pub. Coop. p. 385, Sec. 298; 9 Ann. Cas. 846 note). Although a statute of limitations may, by analogy, be applied to mandamus, as where the writ was not asked for within the five years limitation after judgment is recovered (Wenner v. Board of Education 25 Okla. 515, 106 Pac. 821), it should be remembered that mandamus, being an action at law, the statute, to be available must be pleaded as in other actions at law and cannot be availed of by demurre (Langan v. Milk Grove Spec. Rd. Dist., 239 III 430, 88 N E 182, Aff. 144 III A 394) Right to the writ may, in accordance with equitable principles, be barred not only by laches, but by estoppel, as where, in a mandamus proceeding to compel correction of a Court's journal entry in order that it may speak the truth, relator has agreed and consented to the entry as it appears of record (State ex rel. Warner v. Baer 134 N E (Ohio) 786). There is no general rule as to what is a reasonable time within which the proceeding must be brought. Delays of three months (Deer. v. Busick 218 Pac. (Cal.) 280), six months People v. Green 87 App. Div. 632, 84 N Y S 1139, one year (People v. Seneca Com. 2 Wend. (N Y) 264), fourteen months (People v. New York Board of Educ., 114 Appl. Div. 1, 99 N Y 737), seventeen months (People v. Sturgis 82 App. Div. 580, 81) N Y S 816 eighteen months (Murphy v. Keller 61 App. Div. 145, 70 N Y S 405), two years (Taylor v. Bayonne 57 N J L 376), 30 Atl. 431; Cross v. Cross 90 N C 15), three years (Georges Greek v. Allegheny County 59 Md. 255), six years (People v. New York Board of Educ. 158 N Y 125, 52 N E 722), eight years (State ex rel Eakin v. Delaware Fire Co. 117 Ad. (Del) 129), ten years (Walcot v. Mayor 51 Mich 249, 16 N E 393), have been held sufficient to bar the right to the writ. In cases involving public interest or public policy, as where mandamus was brought by a public officer for re‑instatement, it is of first importance that the aggrieved party act promptly, to the end that if he prevails the Government may be disturbed as little as possible and as in this case, so that two salaries will not be paid for a single service (United States ex rel Arant v. Land 249 U S 367, 39 S C 293), 63 Led. 650). In accordance with the accepted rule that mandamus is not demandable as a matter of right (Secs. 196‑205) the Court may and does, generally rely on its own discretion in determining whether the writ should issue (State ex rel Chase v. Graves 192 N W (Nebr.) 224). In fact, the propriety of its issuance in any particular case is determined by the facts of the particular case (Teeple v. State 171 Ind. 268, 86 N E 49, Louisiane R. Co. v. Coushatta 122 La. 1079, 48, So. 532, State v. Edwards 40 Mont. 313, 106 Pac. 703). The same author while dealing with certiorari in para 176 (p. 201) writes as follows:‑ Time for bringing: Laches.‑--Laches is defined as such negligence or omission to assert a right as, taken in conjunction with the lapse of time, more or less, great and other circumstances causing prejudice to an adverse party, operates as a bar in a Court of equity (Cabell v. Sup. Ct 145 Cal. 42, 46, 78 Pac. 467, 469) There is no hard and fast rule by which to determine whether the right to bring certiorari is barred by laches (Reid v. Super. Ct. 186 Pac. (Cal. A) 634), as the issuance of the writ is largely a matter of sound discretion. The aggrieved party should have a reasonable time within which to make application. Thirty days has been held a reasonable time in the ordinary case and in many cases more than a reasonable time, within which to apply to the inferior Court for a stay of mandate and to duly serve and file the application (State ex rel. Berkshire v. Ellison 230 S W (Mo.) 970). One rule laid down as generally applicable is, that as the common‑law remedy by certiorari is in the nature of that afforded by writ of error, it will not be issued, or if issued will be quashed or superseded, where, in the absence of special facts or circumstances excusing the delay, the application is not made until after the time within which a writ of error must be prosecuted has elapsed (McDonald v. McDonald 141 III A 259; Hyslop v. Finch 99111 171, 179; People v. New York 2 Hill 9) So it has been held, by analogy to appeal, that the application must be made within the time for prosecuting an appeal (State v. Super Ct. 56 Wash, 287, 105 Pac. 815), unless the petition discloses circumstances of a special nature requiring an extension of time (Pullman Co. v. State Bd. of Equaliz 171 Pac. (Idaho) 260 Keys v. Marin County 42 Cal. 252)." "The writ will generally be refused in all cases where petitioner fails to show that he has proceeded expeditiously after discovering that it was necessary to resort to it and especially where great public inconvenience will result from its use (Black v. Brinkley 54 Ark, 375, 15 S W 1030: Jackson v. Blair, 132 N E (III) 221). In all such cases of public detriment or inconvenience petitioner must act speedily and any unreasonable delay will warrant refusal (City of Chicago v. Condell 224 (Ill) 595, 598, 79 N E 954 & 955). In such cases the rule of laches is applied and enforced with particular strictness. (Donvan v. Board of Police Comrs., 163 Pac., 69, 32 Cal. A 392, 4 Std. Enc. L & P 912). So where petitioner delayed over ten months after his discharge and nine months after notification thereof (People ex rel. Macauley v. Burdette 120 N E (III) 519), or where there was a delay of more than three years after judgment fixing township boundary lines (Brinkley Twp. Rd. Dist. v. Dison Twp. Rd. Dist. 225 S W (Ark) 222), or where no excuse was shown for delay and petitioner did not attack the validity of the judgment removing him from office until nine months thereafter, during which time his terms of office had expired (Reid v. Super Ct., 186 Pac. (Cal. A) 634) the right to the writ was barred by laches. While mere lapse of time short of that prescribed by a statute of limitation will not in itself suffice to constitute laches so as to be a bar, yet, if in addition it appears from all the circumstances that prejudice must, or from the very nature of the case may, be reasonably expected to result, the writ will be denied (Cabell v. Sup. Ct., 145 Cal. 42, 78 Pac. 467; Cook v. Ceas 147 Cal. 614, 82 Pac. 370; Mo Gibbon v. Smith 172 Cal. 70, 155 Pac. 460).

11. The famous jurist M. Munir, in his Book entitled as The Constitution of the Islamic Republic of Pakistan, 1st Edition, 1965, while dealing with the question of delay and laches for petition under Article 98 of the Constitution writes as follows at page 350 about mandamus: "Relief is discretionary.‑Relief by mandamus being a discretionary relief, a writ is issued neither as of right nor as of course and may be refused on the ground of delay or some other conduct of the applicant, e.g., acquiescence in illegal assumption of jurisdiction or other irregularity in procedure. There can, however, be no estoppel against the Constitution. A petition for a writ of mandamus should allege demand and denial of justice but the rule is not inflexible." (Reference may be made to) R. v. Halifax Road Trustees (1848) 12 Q B D 448; R. v. Townsend Ex parte Johnson (1856) 28 L T O S 100; Broughton and others v. Commissioner of Stamp Duties (1899) A C 251; Muhammad Athar v. Pakistan P L D 1962 S C 367; Akhtaruddin Khan v. The Province of East Pakistan P L D 1963 Dacca 1001; Waril Mathar v. The Province of East Pakistan P L D 1963 Dacca 497 and Noor Hussain v. Province of East Pakistan P L D 1960 Dacca 31.

12. While dealing with certiorari at page 372, the learned author writes as follows: "Relief by certiorari like other reliefs under Article 98, is a discretionary relief and may be refused on the ground of delay of where the applicant has been guilty of suppression material facts or of other fraudulent conduct. Writ jurisdiction is not to be used in aid of injustice." Refusal of certiorari on the ground of delay is not based on any principle of waiver or acquiescence in jurisdiction. A writ may also be refused where, if issued, it may be nullified by a lawful unilateral act of the respondent. A person who chooses his own forum, cannot ask for certiorari against the proceedings of that very forum, on the ground of lack of jurisdiction."

13. This was about delay and laches in case of the type of mandamus and certiorari. About prohibition, delay is no bar and prohibition can be issued so long as anything remains to be done. The law on the subject was stated by the Privy Council in Estate and Trust Agencies v. Singapore Improvement Trust (A I R 1937 P C 265), in the following words:‑ "On the other hand, there must remain something to which prohibition can apply, some act which the respondents if not prohibited may do in excess of their jurisdiction, including any act, not merely ministerial which may be done by them in carrying into effect any quasi judicial order which they have wrongly made. Their Lordships do not doubt the correctness of the view expressed by R. S. Wright, J. in 63 L J Q B 112 (London Scottish Permanent Building Society, 42 W R 464), at page 113, namely that "An application for prohibition is never too late as long as there is something left for it to operate upon." In the case of R. v. North ((1927) 1 K B 491), Scrutton, L. J., after expressly approving this dictum as that of a Judge who had great familiarity with this subject, remarked: "When the sentence is unexecuted, a statement of intention to execute it may be followed by a writ of prohibition, however, long a time may have elapsed since the original sentence was pronounced."

14. In the cases of habeas corpus, as long as a person is in illegal custody he is entitled to make a petition under Article 98, as illegal detention is a continuing wrong.

15. In the case of quo warranto again since the complaint is about the continuation of a person in office, delay and laches are not of much significance. In this respect, reference may be made to the decision of their Lordships of the Supreme Court in Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque, (P L D 1963 S C 486), (Minister's Case), where at page 542, Hamoodur Rahman, J., wrote as follows:‑ "Lastly, it remains to notice the argument that the High Court should have dismissed the application on the ground of laches, since it was being made nearly nine months after the appellants entered upon their respective offices as ministers. If the Ministers were holding office without any lawful authority, their continuance in office was in the nature of a continuing wrong giving rise to a cause of action de die in diem and therefore, there could be no question of any laches. In any event, on questions relating to the constitutionality of actions the ground of ]aches cannot prevail, for there, can be no estoppel against the Constitution and an act which is unconstitutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act." This decision of their Lordships states that as there can be no estoppel against the Constitution, any action which is against the Constitution will not be spared merely on the ground of laches and delay. Similarly in Muhammad Ali v. Muhammad Bashir and others (P L D 1962 Lah. 230), (Election case), it was held, that High Court would normally refuse to exercise writ jurisdiction on ground of laches but where the disqualification of a Member elected to an elective body was continuing in nature, the delay would be ignored.

15. After having examined the subject in little detail, I would sum up the conclusion as follows: (i) that if the action complained of is against the provisions of the Constitution, then, since there can be no estoppel against the Constitution, the ground of ]aches cannot prevail. (P L D 1963 S C 486). Similarly, in cases of quo warranto, if it is a case of continuing wrong, mere delay will not be of much importance; (ii) delay should not be condoned where it would be practically unjust to give a relief because of waiver of right by conduct or negligence; (iii) delay will not be condoned where, in the circumstances of a case, it would be unreasonable to place the other party in jeopardy and cause prejudice to him; (iv) while considering question of delay, a Court can examine, length of delay and nature of actions done during the interval. In this respect a passage from the judgment of Lord Oaksey, in John Ojobo Agbeyegbe v. Festus Makene Ikomi and another P L D 1953 P C 19, may be read with advantage. It proceeds as follows: "In cases of laches the law was stated by Lord Blackburn in Erlanger v. New Sombrero Phosphate Company 1878 L R 3 A C at page 1279:‑ In Lindsay Petroleum Company v. Hurd L R 5 P C 239 it is said: "The doctrine of ]aches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy,' I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably, be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide and must, therefore, be subject to uncertainty ; but that, I think, is inherent in the nature of the inquiry."

16. From the above discussion, it transpires that delay is a great relevant factor in the exercise of extraordinary jurisdiction under Article 98 of the Constitution. The learned Single Judge, was, therefore, not in error when he took note of considerable and unexplained delay of about three years in this case. During this interval, the opposite side must have changed his position, paid the price of the property to the Department and if at this stage interference is made it will cause a serious hardship and prejudice to him. The compensation book or books which may have been utilised by the opposite side will not be of any avail to him at this late stage; if they are returned, or the payment already adjusted from them is cancelled. The aim of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) is provided for the payment of compensation to certain Displaced Persons and the rehabilitation of others. It is necessary that this purpose is achieved as early as possible and this problem which is shattering the whole economy of the country is settled as expeditiously as possible and the position of uncertainty is removed. This is why that in the Act the period of filing an appeal is only fifteen days and for revisional jurisdiction also the instructions of the Chief Settlement Commissioner are that it should not be exercised where the applications are made late (page 166 of the Settlement Manual (Old Edition)). It will be acting in the aid of this law and in implementation of its spirit, if the point of laches and delay is given due importance in the Settlement, Rehabilitation and Claim cases. From this point of view, we fully agree with the decision of the learned Single Judge, whereby he dismissed the writ petition of the appellant on the ground of laches and delay.

17. Finding no force in this appeal, we hereby dismiss the same summarily. K. M. A. Appeal dismissed.