2003 PLP 1271 (MLD)

S. 17

Constitution of Pakistan (1973), Art. 199

Lease in favour of the petitioner had been cancelled, and such cancellation was upheld by all the Authorities in the statutory hierarchy

Federal Government restored the lease at revisional stage subject to increase in the lease money, on the request of the petitioner and written consent that she would withdraw the pending Constitutional petition

Order in question was per invitum and assertion of duress and coercion by the petitioner, being an afterthought could not be accepted

Petitioner could not be heard to repudiate her stance or resile from her own undertaking and assail the order. Haji Muhammad Asghar v. Malik Shah y-Muhammad Awan and another PLD 1986 SC 542 and A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107 fol. Nayyar Iqbal Ghauri for Petitioner. The lease in favour of the petitioner was cancelled which matter was agitated before the higher forum and ultimately reached Federal Government when on 9-2-2002 the revision petition was accepted in view of the increase in the lease rates to Rs.6,500 per acre per annum. The lease was "restored subject to payment of above lease rates". It was also observed that in case the petitioner failed to deposit the dues within the prescribed period of two weeks the Board would have the right to dispose of the property as per rules and law. The matter was re-agitated by the petitioner before the Federal Government when on their request and written consent the lease money was fixed at Rs.3,500 per acre per annum. This was vide order dated 27-4-2002. Thereafter an application under section 12(2), C.P.C. read with the section 21 of the General Clauses Act was filed for recalling of orders dated 9-2-2002 and 27-4-2002, which application has been dismissed on 4-3-2002. The petition has been filed to assail the above mentioned orders.

2. The learned counsel contends that the matter' before respondent No.2 was about the legality or otherwise of the cancellation of the lease and not in respect of the lease rates which according to him are governed by the provisions of the scheme. The precise contention is that respondent No.2 has disposed of the matter by revising and increasing the lease money which could not be done by him.

3. The admitted position is that lease in favour of the petitioner had been cancelled which cancellation had been upheld by all authorities in the statutory hierarchy. It was at the revisional stage when the Federal Government restored their lease subject to increase in the lease money. The increase so made vide order dated 9-2-2002 was Rs.6,500 per acre per annum. As mentioned above, the petitioner agitated the matter that the lease money was on the higher side which was then reduced to Rs.3,500 per acre per annum vide order dated 27-4-2002. This order refers to a written consent and statement filed by the petitioner also giving an undertaking that the writ petition pending in the Court would be withdrawn. The copy of such a written statement has not been placed on the record which, however, has been shown to me by the learned counsel. The perusal whereof does make it abundantly clear that the petitioner agreed and gave undertaking in writing before respondent No.2 that "we shall pay lease money of Rs.3,500 per acre per year for this lot if lease rights are restored" and will also withdraw the writ petition. The order was thus per invitum, made on the request and consent of the petitioner. The assertion of duress and coercion in obtaining such a writing from the petitioner is in the circumstances merely an afterthought and cannot be accepted. The petitioner is beneficiary of order dated 9-2-2002 and 27-4-2002 as his lease which stood cancelled was restored of course on revised rates. The petitioner cannot be heard to repudiate his stance or resile from his own undertaking and assail the above mentioned order on the grounds now sought to be advanced. Reference in this context may be made to Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542). It was held "where a party to the proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it cannot turn round and successfully plead that it had no legal right to consent, and the Court or Authority could not act on such consent and should not be allowed to do so". It may be noted that for about four months of the passing of order dated 27-4-2002, the matter was not agitated by the petitioner and the application under section 12(2), C.P.C. was made in the month of September, 2002, which was dismissed as per order dated 4-3-2003. The conduct of the petitioner did not permit to agitate the matter after a consent order dated 27-4-2002 had been passed. Reference may be made to A.R. Khan v. P.N. Boga through Legal Heir (PLD 1987 SC 107). In view of the above, this petition is bereft of merit, which is dismissed accordingly. I-188/L??????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.