1980 PLP 99 (CLC)

CHAUDHURY RAHIM LEAD KHAN, C. J.-The dispute in this case relates to the allotment of the plot No. 257-A situate in New Mirpur Town. The allotment Committee duly set up by the Government under section. 3 of the New Mirpur Town (Allotment of Land) Act, 1964 (hereinfter to be called the Act) allotted the disputed plot on 13th January, 1975 in favour of respondent No. 4 after inviting applications under rules. The present petitioner in response to the call also applied for the allotment of the said plot but could not secure allotment because the other applicant, namely, Abdul Khaliq, respondent No. 4 was a Mangla Dam affected person who till then had not secured any other allotment in Mirpur Town. The petitioner's father who is alive is a Mangla Dam affected person but he had already secured allotment of plot No. 257 in his favour. The petitioner had no property that was acquired by the Azad Kashmir Government for the construction of the Mangla Dam. He, however, claims that plot No. 257-A which is adjacent to Plot No. 257 allotted in favour of his father, was levelled by him and was in his possession, so he asserts his preferential right of allotment of the plot. The petitioner did not challenge the allotment within the period of limitation by way of an appeal, which right was available to him, under section 7 of the Act. However, when a subsequent Allotment Committee in a meeting held on 22nd November, 1975 decided to regularise such unauthorised possession, he filed a writ petition on 26th May, 1976 before the High Court. The High Court refused to exercise its discretionary powers of issuing writ for the reason that the petitioner came to the Court at a very belated stage and failed to show due diligence and also because the question of possession as well as that of priority, if any, of the applicant on the basis of being an affected person by the construction of Mangla Dam, being questions of facts, could not be decided in the absence of a necessary data, in exercise of writ jurisdiction. Law prescribes no period of limitation for seeking relief under Article 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 but it is settled by precedents that a party seeking speedy relief such an issuance of writ must show the diligence in seeking for the relief. As the writ petition in the instant case was moved after a period of 16 months which fact alone, unless the delay is reasonably explained, would disentitle the petitioner to obtain the discretionary relief. In these circumstances we are of the view that the High Court was perfectly justified in refusing to make an order in exercise of its extra ordinary jurisdiction under section 44 of the Interim Constitution Act. The claim of the petitioner even on merits as compared to the claim of the respondent apparently does not stand on a better footing rather it is the other way round. No doubt, the petitioner was one of the applicants for allotment of Plot No. 257-A but in view of provision of section 12 of the Act, his claim as compared to respondent No. 4 was inferior. Section 12 of the Act lays down the order of preference which is to be followed by the Allotment Committee. The prescribed order of preference is as follows "

12. For the purpose of determining priority for eligibility for allotment of land, the following order shall be followed (a) Persons affected by the construction of Mangla Dam including the inhabitants of the existing Mirpur Town. (b) Other residents of Mirpur District. (c) Other Jammu & Kashmir Nationals. (d) Persons associated with the affairs of Jammu & Kashmir; and (e) Persons other than those mentioned above. There is nothing on the record to show that the petitioner himself was a person affected by the construction of Mangle Dam while there is pima facie proof (an affidavit) to the effect that the respondent NJ. 4 is a person affected by the construction of Mangle Gam. The father of the petitioner who was admittedly an affected person had secured the allotment of plot No.

257. The petitioner could -not, therefore, claim any superior right to the allotment of this plot in preference to the respondent No. 4 who falls under category first sub-clause (a) of section 12 of the Act. Discussing the scope of the powers of the Nigh Court to issue writ ate. under the provisions of Article 170 of 1956 Constitution, (relevant provisions of our Interim Constitution are also couched in similar words), the Supreme Court of Pakistan P L D 1958 S C (Pak ) 437 at page 462 observed "the power of the High Court to issue directions, orders and writs is not limited to writs in the English form but extends to the making of orders-restraining or directing any authority or Government which may be discharging executive functions under a Statute. But this cannot be taken to mean that purely execu tive action can be controlled by the High Court. The Article is to be read in the context of the whole Constitution, the basic feature of which is a distribution of powers between the Legisla ture, the Executive and the Judiciary. Any encroachment by the High Court in the field reserved for the executive would, therefore amount to &Institution. invasion and would be contrary to the spirit of the constitution. In the exercise of its writ jurisdiction the High Court can never substitute itself for, or assume the responsibility of the executive, for the simple reason that it does not have the requisite information, experience and training to discharge executive functions. That Court cannot, therefore, itself make any executive order, its function being confined to the issuing of directions on matters of law. The conclusion to be deduced from this discussion is that where an administrative or executive officer acts under law, the High Court will control the action by an appropriate order if he

(a) goes out of the law i.e. exercises a jurisdiction not vested in him by law ; (b) wrongly denies or omits to exercise a jurisdiction ; and (c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law. But the overriding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should have injuriously affected some justifiable right of a party." In the instant case, the entire claim of the petitioner was based on an unauthorised possession to which he wishes the authorities to acquiesce. An unauthorised possession, unless that matures into title by lapse of limitation or is recognised or regularised, would not vest the trespasser with any justifiable right so as to invoke the writ jurisdiction of a High Court. Moreover it is well settled law that a person seeking. remedy from Court of law must come with clean bands, the High Court' would not grant relief, in exercise of its discretionary jurisdiction to such) person whose claim of a supposed vested right is based on a possession a obtained by encroachment because his past record in the transaction is not clean and above board. An order of allotment in favour 'of affected, person being in accordance with the equities of the case could not be quashed by issuance of a writ. The Courts of law are meant to administer justice and provide remedy to an aggrieved person and not to perpetuate an inequity. Even conceding for the sake of arguments that the petitioner in this case had any preferential right or any irregularity was committed by the Allotment Committee while making the impugned order of allotment, then, his remedy lay by way of an appeal within 1 5 days before the appellate authority under section 7 of the said Act. A person to whom, a remedy by way of an appeal is available, against an order of Allotment Committee but does not avail of that remedy within the prescribed period of limitation, cannot after undue delay for a period of 16 months, invoke the writ jurisdiction of the High Court, unless it is shown that the authority passing the impugned order bad no jurisdiction or it acted in excess of jurisdiction. There is nothing on the record-nay-it is not even alleged either in the writ petition or in the affidavit that the Committee that passed the impugned allotment order suffered from any defect of jurisdiction. The observation of the Supreme Court of Pakistan in 'The Tariq Transport Company, Lahore v. The Sargodho-Bhera Bus Service and two others' made at page 450 may be quoted with advant age as these observations have a direct bearing on the instant case "Where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ." In that very judgment the following passage at page 448 (B) can also beneficially be cited I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circum stances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast undeserved reflection on their honesty and com petency and thus. to defeat the legislative intent." It was also observed at page 449 that "In the case of mandamus, it has been uniformly held in England that the Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, where there is an alternative specific remedy at law which is not less convenient, beneficial and effective, and such remedy includes an appeal to an appellate Tribunal. Cases of absence or excess of jurisdiction, however, stand on a different footing and are an exception to the general rule just stated." These observations have direct application to the instant ease. Since an appeal was provided in the instant case under the very Act the impugned allotment was, therefore, made for an order to quash a proceeding by certiorari, it was necessary that the lack of jurisdiction should appear on the face of it. Thus it would be quite obvious that where a party applying for issuance of a writ by the High Court, had not availed of the remedy provided by section 7 of the Act, and had not appealed from the order of Allotment Committee to the authority competent to decide an appeal cannot obtain a discretionary order of the nature of writ of certiorari or mandamus from High Court. The learned Advocate for the petitioner was unable to show that the alternative specific remedy provided in the Act by way of appeal was not convenient or beneficial of effective. The writ petition could be refused by the High Court for that reason alone. It was submitted by the counsel for respondent No. 4 that the Allotment Committee, which, decided to regularise the unauthoriset possession was not legally constituted committee, any decision taken by a Committee subsequent to the allotment in the instant case,-even if the Committee might have been legally constituted would not affect to decision already made by an Allotment Committee on the basis of the procedural rules in force at the time the decision was made. Moreover a decision of a Committee cannot supersede the order of precedent that is prescribed under an Act or Rules made thereunder unless the Act is modified by Legislature or Rules are changed by competes authorities. There is nothing on the record to show that any -.hang was ever made in the order of preference prescribed under section 12 c the Act or Rules made thereunder. Obviously a decision made by an Committee in a meeting, unless such a decision is incorporated in it to rules altering the previous rules or law was not have the, force of Ivy, moreover, no objection as regard to the jurisdiction was taken either before the Allotment Committee or before the High Court. It can not be raised before the Supreme Court for the first time, 1970 S C M R 375, D 1971 S C M R 16, 1974 S C M R 90 and P L D 1976 S C 214 may referred in support of the above view. In short there is no justifiable ground for interference with the impugned order passed by the Allotment Committee in this case. No fault can, therefore, be found either with the order of the Allotment Committee or that of the High Court. On an application for leave to appeal to the Supreme Court the applicant must show least that substantial question of law is involved in the case. The Supreme Court would not grant have to appeal froth decision of the High Court, except such decision proceeds on perverse view of the evidence or where finding arrived at by the High Court is manifestly t erroneous or otherwise unjust. In the instant case the finding of the high Court is based on clear question of facts and law that has been a: rived at after proper consideration of the relevant matters involved is tire case. We, therefore, dismiss the application with costs. S. Q Application dismissed.