P L D 1968 Lahore 748 (PLP)

ANWARUL HAQ, J.‑--This judgment seeks to dispose of Writ Petitions Nos. 768 to 773, 792 and 793 of 1965, 967 and 1995 of 1966, and 128 of 1967, all of which raise common questions of fact and law.

2. The facts of these cases may first briefly be stated. In Petitions Nos. 768 to 773 and 792 of 1965 as well as Petitions Nos. 967 and 1995 of 1966 the petitioners are aggrieved by an order passed by a learned Member of the Provincial Board of Revenue, West Pakistan, on the 9th of August 1962 whereby he set aside the grant of permits made in favour of the petitioners by the Regional Transport Authority, Lahore for various routes at its meeting held on the 9/10th of February 1962. By the impugned order the learned Member. Board of Revenue, disposed of ten appeals directed against these grants. It is not necessary to set out at any length the reasons which prevailed with the learned Member, and suffice it to say that he was of the opinion that although on general considerations the policy decision taken by the Regional Transport Authority to liberalise the issue of permits in favour of limited companies owning vehicles of a certain model was justified, yet there was nothing to show that require ments of individual routes had been considered by the R. T. A., with the result that the provisions of section 47 of the Motor Vehicle. Act, 1939 (hereinafter referred to as the Act) had not been complied with. He, therefore, set aside the orders granting the permits on all the routes in question and remanded the case to the Regional Transport Authority for fresh decision after due observance of the provisions of sec tion 47(1)(c) of the Act.

3. These petitioners did not challenge this order of the learned Member, Board of Revenue, until another party, namely, New Muhammadi Transport Service Limited, obtained a favourable decision from this Court on the 10th of March 1965 in Writ Petition No. 1029 of 1962. In that case it was held by a Division Bench of this Court, of which one of us (S. Anwarul Haq, J.) was a member, that the Regional Transport Authority had complied with the provisions of section 47(1)(c) of the Act before granting permits at its meeting held on the 9/10th of February 1962 and, therefore, the learned Member, Board of Revenue, had erred in law in holding to the contrary. As a result the order in question was declared to be without lawful authority. After this Judg ment was pronounced, the petitioners in all these nine cases made an application to the Regional Transport Authority on the 10th of November 1966 for the restoration of the permits which had been previously granted to them, but the Regional Transport Authority refused to do so by its order, dated the 18th of March 1967 on the ground that the orders made by the High Court in favour of some other parties could not operate to the benefit of the petitioners.

4. In Petition No. 793 of 1965 the grant of the route permits was made at the same meeting of the Regional Transport Authority, Lahore, as in the previous nine cases, but the appellate order of the learned Member, Board of Revenue, by which this grant was set aside is dated the 22nd of April 1962, and the reasons are the same as prevailed with him in the other cases. This appellate order had not been specifically assailed in any earlier petition before this Court, yet the petitioner waited to see the result of other petitions instituted in 1962 to challenge the correctness and legality of the order of the Member, Board of Revenue, dated the 9th of August 1962.

5. In Petition No. 128 of 1967 the petitioner is Mahboob Transport Company Limited, Lahore, which had succeeded in obtaining four permits on Jhang‑Chiniot via Khewa route from the Regional Transport Authority at the same meeting at which the other grants were made, namely, one held on the 9/10th of February 1962. Two other companies i.e., Shaheen Bus Service and Shorkot Transport Company, were also granted two permits each on the same route. The permits were issued in favour of the petitioner on the 15th of February 1962, but the same were surrendered to the R. T. A. on the 6th of March 1962 on the ground that the petitioner had been informed by the P. W. D. authorities that it would take about a year to put, the road in proper motorable condition. On the 6th of July 1963, the petitioner made an application for the restoration of the permits, but it was informed that the same had been cancelled by the Member, Board of Revenue, in appeal by his order, dated the 9th of August 1962. When .the case was re‑considered by the Regional Transport Authority in accordance with the directions given by the Member, Board of Revenue, permits were granted to two other companies, whereupon the petitioner went up in appeal which was accepted by the Member, Board of Revenue, by his order, dated the 12th of December 1963 and the case was once again remanded to the R. T. A. for fresh decision. Thereupon the Regional Transport Authority surveyed the route again and invited fresh applications for the grant of six permits on this route, and the item was scheduled to come up before the Regional Transport Authority at its meeting to be held on the 25th of July 1964. It appears, however, that no decision was taken by the Regional Transport Authority on that date, nor at the next meeting held on the 24th of March 1965. In the meantime, Writ Petitions Nos. 1029, 1085 and 1122 of 1962 filed by the other grantees whose permits had also been cancelled by the same order of the learned Member, Board of Revenue, were accepted by the High Court on the 10th of March 1965, as already stated. Encouraged by this develop ment this petitioner also approached the High Court on the 7th of April 1965 by way of Writ Petition No. 448 of 1965, but withdrew the same on the 4th of November 1965 in order to approach the Regional Transport Authority in the light of the judgment of the High Court in the three petitions of 1962 just mentioned. In the meantime, another petition, namely, No. 327 of 1964, instituted by Shaheen Transport Company and relating to this very route was also accepted by the High Court on the 9th of June 1966. Ultimately the matter came up before the Regional Transport Authority at its meeting held on the 26th of August 1966 at which two permits were granted to Shaheen Transport Company in accordance with the orders of the High Court, but with regard to the remaining permits it was ordered that a fresh assessment of the requirements of the route be made. The petitioner's application for the restoration of the grant made in its favour in February 1962 was rejected by the Regional Transport Authority by its letter dated the 3rd of December 1966 on the ground that the previous decisions of the High Court did not cover the petitioner's case. The present petition was filed on the 24th of January 1967.

6. In all these cases the main contention put forward by Qureshi Mahmood Ahmad and the other learned counsel appearing for the petitioners is that, irrespective of the fact that the petitioners were not parties to the previous petitions by which the appellate order of the Member, Board of Revenue, dated the 9th of August 1962 was challenged in the High Court, the effect of the declaration granted by the High Court with regard to the validity of the order in question is that the grants made in favour of the petitioners also automatically stood revived and, therefore, the Regional Transport Authority was not justified in law in refusing to restore the permits granted to the petitioners in 1962. In the alternative, it is contended that even if the previous judgments of the High Court in Writ Petitions Nos. 1029, 1085 and 1122 of 1962 as well as in Writ Petition No. 327 of 1964 do not automatically operate to the benefit of the petitioners, the appellate orders of the Member, Board of Revenue, dated the 9th of August 1962 and the 22nd April 1962 are without lawful authority for precisely the same reasons which have already been accepted by the High Court in the other petitions, namely, that the learned Member, Board of Revenue, had fallen in error in thinking that the Regional Transport Authority had not complied with the provisions of sections 47 and 48 of the Act while making the grants in favour of the petitioners. It is, therefore, sub mitted that in either case the appellate orders have to be set aside even as against the petitioners, with the necessary consequence that the grants made in their favour in 1962 would become operative.

7. On behalf of the contesting respondents, who are mostly the existing operators on these routes, several preliminary objections to the maintainability of these petitions have been taken, mostly relating to laches on the part of the petitioners. It is pointed out that the orders by which the permits granted in favour of the petitioners were cancelled were passed as long ago as the 22nd of April 1962 or the 9th of August 1962, but the petitioners did not challenge the same until the lapse of more than three years in some cases and of four or five years in the others. It was submitted that the judgments delivered by the High Court in favour of other parties could not operate to the benefit of the petitioners and the fact that they waited to see the result of litigation started by other parties could not be regarded as a sufficient justification for their failure to move these petitions earlier. With regard to Petition No. 128 of 1967 it is further submitted that this petition cannot succeed in any case, as the appellate order of the Member, Board of Revenue, dated the 12th of December 1963 and the R. T. A's order, dated the 25th of July 1963 have not been challenged in the present proceed ings, and if those orders are allowed to stand in the field then no effective relief can be granted to the petitioner in this case. Finally, the point is made that the last order of the Regional Transport Authority refusing to restore the permits was appealable to the Member, Board of Revenue, but the petitioners did not avail themselves of this adequate alternative remedy provided by the relevant law.

8. It seems to us that the first question which needs to be decided in all these cases is whether in the circumstances the petitioners are indeed guilty of laches, as alleged by the respondents, and for this reason not entitled to any relief in the exercise of our extraordinary juris diction under Article 98 of the Constitution. It will be seen that in most of these cases the grants were cancelled by the appellate order of the Member, Board of Revenue, passed on the 9th of August 1962 and in one case the order is even of an earlier date, namely, the 22nd of April 1962 Out of the eleven petitions before us, eight were filed in 1965 two in 1966 and one in 1967, although the petitioner in the last case had earlier moved this Court on the 7th, of April 1965, but had withdrawn its petition on 4th of November 1965. In other words, in all these cases a period of three to four years was allowed to elapse, since the impugned order was passed, before invoking the jurisdiction of this Court. The only explanation which has been given is that the petitioners were waiting to know the result of the petitions instituted by some other parties to challenge the correctness and legality of the orders of the 9th of August 1962. The other appellate order dated the 22nd of April 1962 had not at all been challenged in any earlier proceedings. The question is whether this is a sufficient cause or explanation for the admitted delay that has occurred on the part of the petitioners.

9. As a general rule, the Superior Courts are averse to granting relief, in the exercise of their extraordinary power of judicial review, to parties who are guilty of laches or delay in invoking this jurisdiction, the reason being that by their omission to act promptly such parties may be deemed to have accepted the orders of the administrative authorities, and it would be unfair to disturb, at their instance, rights and obligations which had been settled and finalized long ago under the relevant law. However, in suitable cases exemptions have been made when the delay is satisfactorily explained or otherwise the circumstances are such as to justify intervention by the Courts. Certain principles are disernible from decided cases which may be noticed here.

10. In John Ojobo Agbeyegbe v. Festus Makene Ikomi and another (PLD1953PC19) their Lordships observed :‑ "The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practi cally 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 negligence, 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 sub stantially 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 or cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

11. The same principle was stated in Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and four others (P L D 1960 Kar. 826), Sabir Ahmed Choudhry v. Province of East West Pakistan and another (P L D 1960 Dacca 1025), Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others (P L D 1962 Dacca 310), Mir Abdullah Khan v. The Government of West Pakistan and others (P L D 1960 Pesh. 63), Mukhtar Hussain v. The District Manager, Provincial Transport Service, Lyal1pur (P L D 1966 Lah. 258) and Muhammad Afzal and others v. Mian Miraj Din and others (P L D 1967 Lah. 689). In the last two cases delays amounting to three and a quarter years and sixteen months, respectively, were held to be fatal to the maintainability of the petitions, in the absence of sufficient cause. It was observed that delay amounted to acquiescence and, therefore, the validity of the impugned order could not be allowed to be challenged at such a late stage.

12. On behalf of the petitioners Qureshi Mahmood Ahmed referred us to Manzur Ahmad P. F. S. v. The Province of West Pakistan (P L D 1961 S C 166), Shrimati Mulibai and two others v. The Custodian of Evacuee Property and another (P L D 1964 S C 648) and Muhammad Ali v. Muhammad Bashir and others (P L D 1962 Lah. 230) in support of his submission that in suitable cases delay could be condoned by the Court. In the first mentioned case it was observed by his Lordship the Chief Justice that there was no inordinate delay on the part of the petitioner. This case does not, therefore, help the present petitioners. However, in the case of Shrimati Mulibai and two others their Lordships were dealing with a time‑barred appeal from the order of the Custodian of Evacuee Property, and they condoned delay on the ground that the questions of law involved were the same as those arising in the appeal from the order of the High Court. It appears to us that the considerations arising in this case were obviously of a peculiar nature, such as do not obtain in the cases before us. In the third case relied upon by Qureshi Mahmood Ahmad it was observed that " normally this Court would refuse to exercise its writ jurisdiction in favour of a petitioner who is guilty of lathes, but in view of the continuing nature of the disqualification which attaches to the respondents, we are of the view that this is a case where a delay on the part of the petitioners cannot be allowed to defeat the petitioners". These observations were made in a petition for a writ of quo warranto and the Court had found that the respondents were suffering from a continuing disqualification to hold the elective office in question. It .is clear that considerations arising in such a case are different from those which apply in the matter of disputes between commercial organisations competing, with each other for the grant of certain concessions which enable them to earn profits for themselves. In the dispute raised by the present petitioners no question of public importance appears to be involved, and the controversy between the parties is, in the last analysis, related to the quantum of profits which ore is party or the other would ‑ be able to make in certain con tingencies. We do not think, therefore, that the observations made in the case of Muhammad All v. Muhammad Bashir (P L D 1962 Lah. 230) have any relevance in the present context.

13. Reference may also be made in this connection to Ziaul Haq v. A. Brabant and another (P L D 1962 Pesh. 21) which was placed before us by Mr. Fazal‑i‑Hussain, the learned counsel appearing for one of the respondents. While dealing with the question of condoning delay in the matter of a time‑barred appeal it was observed that "the assertion that the impugned order runs counter to certain authoritative pronouncements of this Court and of the Supreme Court is not a sufficient cause within the meaning of section 5 of the Limitation Act".

14. It would be seen that delay or laches on the par of a petitioner have always been regarded as disentitling him to relief in the exercise of the extraordinary constitutional jurisdiction of the High Court, unless, of course, the delay can be reasonably explained. No hard and fast rule can be laid down, as the statute does not prescribe any period of limitation within which constitutional petitions have to be presented. The length of the delay that has occurred, the circumstances responsible for it, the nature of the injury suffered by the petitioner, the altered position of the opposite‑party and the requirements of equity have all to be taken into account before deciding whether relief would be refused on the ground of laches or delay. Now, in the cases before us it is clear that after the appellate orders of the Member, Board of Revenue, were pronounced, the petitioners did not take any steps to challenge those orders for periods ranging between three to four years, during which further proceedings were taken by the Regional Transport Authority in accordance with the directions given by the Member, Board of Revenue. The mere fact that some other parties had challenged these orders before the High Court did not, to our mind, constitute sufficient justification for the petitioners to stand aside and wait for the result of those proceedings. As a result, we must hold that the petitioners are guilty of serious laches in invoking the jurisdiction of this Court and accordingly the petitions are liable to be dismissed on this ground alone.

15. We now proceed to examine the contention that the appellate order of the Member, Board of Revenue, dated 9th August 1962, having been declared to be without lawful authority by the High Court in certain petitions instituted by another party, that declaration automatically operates in favour of the present petitioners as well. In support of this submission Qureshi Mahmood Ahmad, the learned counsel for some of the petitioners before us, took great pains to explain at length the powers of the appellate Court to act under Order XLI, rule 33 of the Civil Procedure Code, and attempted to argue that while exercising its jurisdiction under Article 98 of the Constitution the High Court can be regarded as having the same powers as an appellate Court. It seems to us that the argument is entirely misconceived. While exercising its extraordinary powers under Article 98 of the Constitution the High Court does not sit as an Appellate Court, and its juris diction is clearly defined and circumscribed by the specific provisions of that Article, and there is no analogy between the scope of these Constitutional powers and the appellate powers enjoyed by the High Court under the provisions of the Civil Procedure Code. While acting as an appellate Court the High Court enjoys all the powers possessed by the trial Court, whereas. under Article 98 of the Constitution. it is not the function or jurisdiction of the High Court to examine factual controversies and to substitute its own opinion and discretion for those of the statutory authorities concerned.

16. In any case, even if the High Court has power to grant relief by the application of principles embodied in Rule 33 of Order XLI of the Civil Procedure Code, the question would still arise whether such power could or should be this Court for a period of 3 to 4 years since the impugned exercised in favour of the parties which have not moved order was passed against them. In the light of the principles adopted by the High Court in this behalf, it is clear that the answer to such a question would be against the petitioners.

17. As regards the automatic operation, in favour of the petitioners, of the judgments delivered by the High Court in proceedings started by other parties, it is clear that the matter has to be examined in the light of first principles. As is well‑known there are two categories of judgments viz. Judgments in rem and judgments in personam. It is only the first category of final judgments, which determine the status of a person or a thing or disposition of a thing (as distinct from the particular interest in it of a party to the litigation) which bind third parties, whereas judgments to personam determine the rights of parties inter se, and do not bind any one else. It is clear that the judgments delivered by the High Court in the constitutional petitions instituted by other aggrieved parties could not be described as judgments in rem; and Qureshi Mahmood Ahmad conceded that if those judgments had gone against the interest of the petitioners the latter would not have been bound by them and would have been at liberty to agitate the matter in their own right. Such being the case, it becomes clear that the Regional Transport Authority was right in observing that the judgments in other cases, obtained by other parties, did not necessarily benefit the present petitioners. On this view of the matter the refusal of the Regional Transport Authority to restore the grants made in favour of the petitioners in the year 1962, cannot be said to be without lawful authority.

18. The position, therefore, which emerges from the foregoing discussion is that the judgments obtained by third parties with regard to the validity of the appellate order of the Member, Board of Revenue, dated the 9th of August 1962, did not automatically operate for the benefit of the petitioners and the petitioners are guilty of serious laches in waiting for periods ranging between 3 to 4 years before invoking the jurisdiction of this Court. The fact that they waited to see the result of litigation commenced by other 4 parties does not constitute sufficient justification for the delay that has occurred on their part. The appellate orders of the Member, Board of Revenue, having been implemented by the Regional Transport Authority by ordering a fresh survey of the routes and by inviting new applications, it is now too late to interfere, at the instance of the petitioners, to restore the grants originally made in the year 1962. There are no equities in favour of the petitioners justifying any such action. As a result all the petitions are dismissed with costs. A.H. Petitions dismissed.