2004 PLP 1938 (CLC)

(iv) that the Honourable High Court is supposed to know law especially laid down by the Supreme Court; and (v) that the writ petition was admitted only in one sentence while the matter in hand requires strong and cogent reasons where a party is acting malafidely on all scores." The petition for leave to appeal was dismissed by me vide order under review, dated 26-2-2004.

3. It is contended by Ch. Muhammad Yunus Arvi, petitioner No. 1, that the point of laches raised by the petitioners was not properly taken into consideration while dismissing the petition for leave to appeal. According to him no petition of any kind was moved by petitioner No. 1, i.e. Ch. Muhammad Yunus Arvi, rather the same was moved by Muhammad Rizwan, the transferee of the plot in dispute and further that the order under review is against the facts wherein it was mentioned that the plot was cancelled on the application of brother of petitioner No.3. According to petitioner No. 1 it was cancelled because petitioner No. 3 had not deposited the price of the plot. It was further pleaded and argued that another defect apparent on the face of record is that if the Chairman MDA was not competent to restore the plot in dispute, how he was competent to cancel the same without notice to petitioner No.3. It was further pleaded in the review petition that at page 5 of the judgment it is stated that the point was not agitated in the writ petition whether notice was served upon petitioner No.3 or not and this goes against the petitioners and it cannot be made basis for admission of writ petition.

4. The petitioner, Ch. Muhammad Yunus Arvi, has assumed that the facts pleaded by him about the allotment and cancellation of plot are correct. He has not taken into consideration the facts pleaded in the writ petition which was filed by the respondent in the High Court. In the writ petition, Sohail Bostan has contended that Ch. Muhammad Arif, petitioner No.3, who was arrayed by him as respondent No.4, is residing in U.K. along with his family members since long, who has never returned to Mirpur, as such he never moved an application for allotment of plot. According to him the application for allotment of plot was moved on 22-11-1987 by Ch. Muhammad Yunus Arvi, impleaded as respondent No.7 in the writ petition, through misrepresentation and by concealing the true facts on the basis of fictitious signatures.

5. In para. 2 of the writ petition it was claimed by the respondent that Ch Muhammad Arif is residing in U.K. along with his family members since long and has never returned to his native town. On his behalf an application was moved on 22-11-1987 by Ch. Muhammad Yunus Arvi, who was impleaded by him as respondent No.7, affixing thereon fictitious signatures for the allotment of plot as being Mangla Dam affected person without depositing any earnest money. It is further contended in this para that respondents Nos. I to 3 in violation of rules allotted plot in dispute in the name of respondent No.4. Ch. Muhammad Arif.

6. In para 3 of the writ petition it is pleaded by the respondent that Tariq Ahmed, who was arrayed by him as respondent No.5, moved an application that his brother, Ch. Muhammad Arif, is residing in U.K. and therefore is not in need of the aforesaid plot. The same therefore may be allotted to him. After conducting an inquiry, the said plot was cancelled from the name of Ch. Muhammad Arif on the ground that he is residing in U.K and has not deposited the price of the plot. Therefore the same was cancelled from his name by the Chairman M.D.A. on 15-7-1997 who was impleaded by him as respondent No.2.

7. In para. 4 it is pleaded by him that later on an application was moved by Muhammad Rizwan Arvi, son of Ch. Muhammad Yunus Arvi in which he contended that the price of land has been deposited through instalments. According to contesting respondent he obtained report with the collusion of staff and got the plot restored in the name of Ch. Muhammad Arif vide order of the Estate Officer, M.D.A. dated 24-9-1997.

8. In the concluding part of his writ petition, he has once again repeated that Ch. Muhammad Arif never applied in accordance with the rules for the allotment of plot. In these circumstances in sub-para (iii) of grounds of the writ petition, he has challenged the authority of respondents Nos.2 and 3, who are the Chairman M.D.A. and the Estate Officer M.D.A. who conducted proceedings for the allotment of his plot, In para. 7 of the writ petition the respondent has stated that the entire proceedings are based on mala fide intention. The proceedings were kept secret from him and after a long struggle he got the knowledge of the fictitious allotment secured by respondent No.4 and after obtaining the copies has filed the writ petition.

9. The sum-up of the writ petition filed by the respondent herein is that the allotment order was secured through fraud by petitioners, herein, other than the actual beneficiary, Ch. Muhammad Arif. We all know that repeatedly it has been laid down that fraud vitiates all solemn acts. In a case reported as Muhammad Yunus Khan etc. v. Government of N.-W. F. P. etc. 1993 SCMR 618 at page 628 it is laid down as follows:

"Fraud vitiates all solemn acts. Any instrument deed or judgment or decree obtained through fraud is a nullity in the eye of law. It can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they arc produced in any proceedings." Again in this authority it is laid down that fraud is suggestion, as a fact, of that which is not true, by one who does not believe it to be true. Fraud would include active concealment of a fact by one having knowledge or belief of fact, a promise made without any intention of performing it, any other act fitted to deceive, and any such act or omission as law specially declares to be fraudulent.

10. In Saifur Rehman and others v. Haider Shah and another PLD 1967 SC 344 it was laid down that term fraud is to be interpreted in a liberal sense as including any improper means resorted to for preventing execution. It covers not only deceit but also circumvention.

17. In Mst. Athar Jabeen and another v. Deputy Settlement Commissioner and another PLD 1993 Lah.

842. It was laid down that fraud vitiates the most solemn proceedings and a party cannot be permitted to reap and retain benefit of its fraud-. Fraud cannot be sanctified or protected by any Court, Tribunal or Authority, they have inherent- jurisdiction to review their record to undo the acts of fraud.

18. In Mst. Fahmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 it was laid down that as fraud vitiates proceedings of a Court or Tribunal, therefore, such Court or Tribunal would have power to set aside any order which had been secured by practising fraud or misrepresentation upon it.

19. There are a number of authorities, a few out of them have been referred by me in this order. The survey of the case-law makes it clear that it is a unanimous view of the Courts that fraud vitiates the most solemn proceedings and no party should be permitted to repatriate benefit of his fraud. In the light of pleadings of writ petition, the allotment in the name of Ch. Muhammad Arif has been secured through fraudulent tactics. Therefore, in the light of pronouncements of the Courts a party cannot be allowed to retain benefits obtained through fraud and such proceedings can be quashed at any time.

20. In para. 7 of the writ petition, in order to meet the objection of laches, the petitioner, respondent herein, has pleaded that he was not in the knowledge of fictitious allotment by respondent No.4. After great struggle he obtained the knowledge of the same. Therefore, he claims that his writ petition is within limitation from the date of his knowledge. In para. 1 of the writ petition, he has stated that he is resident of village Kas Kalyal and is present residing in U.K. He moved an application for allotment of a plot from overseas quota and has also deposited earnest money and up to this time is waiting for allotment of plot. In these circumstances whether principle of laches is attracted or not is a question which can be resolved by the High Court at appropriate time. 21 ping in view the averments of the pleadings, as said earlier, no fault was committed by the High Court while admitting the writ petition of respondent herein for regular hearing.

22. While drafting the petition for leave to appeal, I have noticed that proper language was not used by the learned counsel for the petitioner. In sub-para. (iv) of the grounds of his petition, he has stated as follows:-- "That the Honourable High Court is supposed to know law especially laid down by the Supreme Court." I have worked with the learned Judges of the High Court in different capacities and I know that all of them fully know the law rather I should say that the law of the land is on the sleeves of their robes. The learned counsel has given importance to the facts which he has pleaded. He has not taken into consideration the facts pleaded by the contesting respondent. It is correct that the writ jurisdiction is a discretionary jurisdiction., however, the Courts are not supposed to pass unguided and arbitrary orders. Courts are expected to exercise their discretion in a judicious manner and the verdict given by the High Court for and against a petitioner who has invoked the writ jurisdiction must be expressed in a well-reasoned judicial order. The drafting of the petitioner for leave to appeal in light of above referred sub-para. is very objectionable. A counsel from Muzaffarabad once drafted application like one which is under consideration before me in which he attacked the wisdom of a learned retired Judge of this Court. This Court issued him a warning that he should remain careful in future. I feel it is my duty to advise the learned counsel that in future he should be careful while drafting the petitions or appeals. An aggrieved party can attack the findings recorded by the Presiding Officer of any Court before the Appellate Court; however, it cannot blame the Presiding Officer of the Court in the garb of appeal. I also want to make it clear that no doubt the power of issuing writs and directions under section 44 of the AJ&K :Interim Constitution Act, 1974, is discretionary with the High Court, but at, the same time let me make it clear that the discretion for or against a party must be exercised like all other judicial discretions in accordance with the law. Therefore, the orders must be well-reasoned and based on sound judicial F principles. The learned Judge of the High Court was, therefore, not supposed to throw away the writ petition merely on tile ground that he had discretionary power as was pleaded by the petitioner in ground (iii) of his petition for leave to appeal which reads as follows:-- "that the writ petition is a discretionary relief and can be refused and High Court is not bound to grant the same."

23. The petitioner in fact through the present review petition wants the rehearing of his petition) for leave to appeal on the ground of laches which is not permissible. Whether the principle of laches is applicable or not shall be decided by the learned Judge in the High Court by keeping in view the averments of the writ petition filed by the respondent and the written statement which shall be filed on behalf of present petitioners before the High Court. It will be too early to place reliance upon the authorities titled Nazar Hussain v. Mst. Azmat Bibi 2004 PCr.LJ 880 and Azad Government and others v. Haji Sumandar Khan 1995 MLD 1350, relied upon by the Ch. Muhammad Yunus Arvi, petitioner No.1 and learned counsel for rest of the petitioners. This aspect of the case is left open for decision by the High Court. Any observation recorded in this order shall be taken to the extent of this review petition and not beyond, that. In view of above, this review petition having no merit is hereby dismissed. H. B. T./116/SC(AJ&K) Petition dismissed.