FAZEELAT AKHTAR and another vs MEMBER (COLONIES), BOARD OF REVENUE, LAHORE and others
This petition for leave to appeal arose from the dismissal of an Intra-Court Appeal by the High Court regarding a State land allotment dispute. The High Court had dismissed the petitioners' appeal primarily because they failed to disclose in their initial writ petition that they had previously filed and lost a civil suit concerning the same subject matter, invoking the doctrine of unclean hands. The petitioners argued that the dismissal on these grounds was a matter of judicial discretion, which the learned Single Judge had not exercised against them. Upon review, the Supreme Court noted that the land in question had been incorporated into the Gujranwala Permanent Scheme, precluding the grant of proprietary rights to the petitioners. However, the Court observed that consistent government practice dictates offering alternative State land to such affected persons, a process that had not occurred. Consequently, the Supreme Court granted leave to appeal, directing the petitioners to apply for alternative land while maintaining their current possession under specific conditions, including sharing produce with any future allottee, pending the final decision of the appeal.
- Does the failure to disclose a prior unsuccessful civil suit in a writ petition automatically warrant the dismissal of an Intra-Court Appeal on the ground of unclean hands?
- Is the government practice of offering alternative State land to persons affected by the inclusion of their land in a permanent scheme a legal entitlement or a mere bounty?
- Can the Supreme Court direct the provision of alternative land as an interim measure pending the final adjudication of an appeal regarding land allotment?
ORDER
' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought; against the dismissal by the High Court, of petitioners' Intra-Court Appeal in a State land allotment matter. This dismissal of the I.CA. As admitted by the learned counsel, was mainly on account of the reason that the petitioners had not disclosed in the writ petition the fact that they had earlier filed suit in respect of the main subject-matter and had failed. He, however, argued that this question of dismissal of a writ petition on the ground of unclean hands is one of exercise of discretion and further that the learned Single Judge not having exercised discretion in this behalf against petitioners, the learned Judges of the I.CA. Should not have denied relief to the petitioners on this ground.
Coming to the judgment of the learned Single Judge it proceeded on the basis that the land in possession of the petitioners had been included in the Gujranwala Permanent Scheme, therefore, in accordance with the instructions and Notifications the proprietary rights claimed by the petitioners' side on that land could not have been granted to them. After some arguments it has been noticed that but for introduction of said permanent scheme the petitioners would have been granted the land in question and further that in such like cases it is the consistent practice of the Government to offer alternative State land to the affected persons. It further argued that this cannot be treated as mere bounty by the State. The relevant Notifications do create rights in favour of the allottees particularly when they become eligible' to a further right to obtain proprietary rights. In this case the aforementioned exercise has not been done. Leave to appeal is granted.
' Security Rs,5,000.
2. In the meanwhile the petitioner shall make an application for grant of some other land. If he fails to file an application or otherwise having filed it does not pursue it, this leave to appeal might then be withdrawn. It is further directed that this order shall not be a bar to the allotment of land in dispute to a deserving person under the aforestated permanent scheme. The possession of the petitioners shall not be disturbed till the said allotment is formally made. From that date onward also the petitioners' physical possession shall not be disturbed so long as they give the landlord's share in produce to the new allottee. This arrangement shall then continue till the decision of this appeal.