P L D 1966 (W (PLP)

FARUQUI, J.‑

This petition under Article 98 of the Consti tution is directed mainly against the order dated 13th July 1962 passed by the Member, Board of Revenue in an appeal by the respondent Messrs Chowdhury Transport Co. whereby the learned Member, Board of Revenue had granted an additional B. Part permit to the respondents on the route in question.

2. The material facts are these: On 23rd November 1961 the Regional Transport Authority, Hyderabad, respondent No. 2, before us, advertised for applications to be submitted for a route permit for Shahdadpur Shahpur Chakar Road. In res ponse to this advertisement the petitioners Messrs Tande Adam Transport Co. Ltd. and the respondent No. 3 Messrs Chowdhry Transport Co. Ltd. amongst others applied for the said route permits. The R. T. A. after receiving objections and hearing the parties granted the said permit to the petitioners at its meeting held on 19th April 1962. The applications of the other parties including the respondent No. 3 were rejected, The res pondent No. 3 being aggrieved by the grant of the permit to the petitioner and the rejection of its application preferred an appeal before the Member, Board of Revenue, Government of West Pakistan, Lahore which was allowed by an order passed on 13th July 1962 which runs as follows:-- "The appellant‑Company has got only one B Part permit on this route, while all other grantees got two B Part permits. The fleet position of the company is satisfactory. The appellant‑Company may be granted another B Part permit, provided it produces a 1961 model vehicle which is not devoted for any other route." In pursuance of this order the Regional Transport Authority, Hyderabad granted on 14th February 1963 such a permit to the present respondent No. 3 who was the appellant before the Member, Board of Revenue. This was an additional permit for the same route for which a permit had been granted to the petitioners Tando Adam Transport Co. for the said route. The petitioners then filed this petition in the High Court upon the ground that the Member, Board of Revenue in appeal had absolutely no jurisdiction to grant a fresh stage‑carriage permit while exercising the powers under section 64 of the Motor Vehicles Act which relates to appeal.

3. When this petition came up for hearing before a Divi sion Bench of this Court, the said Bench by its order dated 21st November 1963 formulated the following two questions and referred them to a Full Bench. These questions are :‑ "

1. Whether the order of the Regional Transport Authority fixing the number of the route permits under the Motor Vehicles Act is final and cannot be questioned in appeal?

2. Whether the Board of Revenue in an appeal against the refusal to grant route permit can increase the number of permits and create an extra route and confer the permit on the appellant ?" A Full Bench was accordingly constituted which after hearing the advocates of the petitioners and the respondent No. 3 (the A first two respondents did not put in appearance) answered the reference by its order dated 20th January 1964 is the following manners:‑

"In view of the conclusion our answer to the first question referred to us by the Division Bench is that the limit fixed by the Regional Transport Authority under section 48(a) of the Act regarding the route permits cannot be questioned in appeal. Our answer to the second question is that the Board of Revenue in an appeal against the refusal to grant a permit, cannot increase the number of permits so as to grant one to the appellant." Having answered the question the Full Bench directed the case to be placed before a Division Bench for decision on merits.

4. The case has now come before us and Mr. P. M. Amer, learned Advocate for the petitioners, stated that in view of the answer returned by the Full Bench his petition must be allowed and the order of the Member, Board of Revenue dated 13th July 196.2 and the consequential order dated 14th February 1963 made by the Regional Transport Authority be quashed. Mr. Salim Chowdhur for the Respondent No. 3, however, contended before us that notwithstanding the answer of the Full Bench on the two 'questions the petitioner Company must still be refused the relief which it claimed from this Court in exercise of its special jurisdiction under Article 98 of the Constitution, because not only that the present petitioners had not objected to the jurisdiction of the Member, Board of Revenue in the matter of ordering the grant of an additional B Part permit to his client, the respondent No. 3, but that this order was passed upon an understanding between the petitioners and the respondent No. that if an additional permit was granted to the respondent No. 3 the petitioners would have no objection to it. The learned counsel referred us to three decisions in support of his contentions. These are:‑ The judgment of the Supreme Court in the case of Ghulam Mohiuddin v. The Chief Settlement Commissioner (P L D 1964 S C 829); The judgment of a Division Bench of this Court in the case of Haji Ghulam Nabi v. Settlement and Rehabili tation Commissioner (P L D 1962 Kar. 786) and The judgment of the Bombay High Court which was relied upon in the Karachi case Gandi Nagar Motor Transport Society v. State of Bombay (A I R 1954 Bom. 202). In our opinion, all these three cases are distinguishable from the case before us but in view of the conclusion that we have reached in this case upon which we have decided to refuse the relief to the petitioners, it is not necessary to go into the points of distinction in the cases cited before us.

5. In the written statement filed by the respondent No. 3 in opposition to the petitioners which was filed on 19th August 1963 which was supported by an affidavit of the managing director of the respondent No. 3 the fact that there had been an understanding between the petitioners and the respondent No. 3 are urged before us was twice stated in most categorical terms. It was first stated in the preliminary objection contained in para. 1 of the written statement. In this paragraph it was stated that the present petitioners did not raise any objection to the exercise of jurisdiction by the Member, Board of Revenue and, therefore, they were precluded by their conduct from questioning the vires of the order before this Hon'ble Court. It was further stated "there was an understanding between the parties that if the respondent No. 3 did not press his appeal against the aforesaid grant the present petitioner would have no objection if the respondent No. 3 was granted another permit on Shahdadpur, Shahpur Chakar via Chudaggi route". This state ment of fact was again repeated in the written statement on merits in para. 9 thereof. This written statement supported by the affidavit was filed on 19th August 1963 and up to this day the petitioner Company has not filed any counter‑affidavit or any written denial of the assertion of fact relating to the said understanding. When we pointed this out to Mr. Amer he replied that this was mere oversight. We are, however, not inclined to treat the matter so lightly. The relief to be granted under Article 98 of the Constitution‑ is a matter within the discretion of the Court having regard to the nature of this jurisdiction. Considering that a clear assertion was made that the grant of the conditional permit to the respondent No. 3 was t upon the understanding with the petitioners and that assertion not having been controverted ' in' an affidavit we are clearly of the opinion that the petitioner Company has by its conduct dis entitled itself for being granted a discretionary relief by this Court. The assertion of the respondent No. 3 with regard to the alleged understanding finds support from the nature of the order passed .by the learned Member, Board of Revenue. We have reproduced this order earlier in this judgment and this would show that there is not a word in it about the petitioners' permit which had been granted to it by the Regional Transport Authority. All that is said in this order is that an additional permit be granted to the respondent No.

3. The Courts have repeatedly held that a party seeking relief under the exercise of an extraordinary jurisdiction of the High Court relating to con stitutional writs or orders must come to Court with clean hands, otherwise the party may disentitle itself to any relief on that ground alone. If the grant of the additional permit by the Member, Board of Revenue was upon an understanding between the petitioners and the respondent No. 3 we will not permit the petitioners to question the jurisdiction of the Member, Board of Revenue in the matter of granting an additional permit. If a result was brought about by an understanding to which the petitioners were themselves a party they cannot then be allowed to effectively invoke the jurisdiction of this Court under Article 98 for undoing something to which they themselves had been a party.

6. For these reasons we hold that this is not a fit case in which this Court will grant relief to the petitioners in the exercise of its discretionary power under Article 98 of the Con stitution. We accordingly dismiss the petition with costs. The injunction issued by this Court is withdrawn. K.B.A. Petition dismissed,