LAHORE DEVELOPMENT AUTHORITY through Director-General, LDA, LAHORE vs Mst. SHAMIM AKHTAR and another

' Brief facts out of which the present writ petition arises are that respondent No,1 filed Reference No,39 of 1984 against the petitioner before the President, LDA Tribunal under section 30 of the Land Acquisition Act, 1894. The learned President, LDA accepted the Reference vide order dated 25-2- 1986. Petitioner being aggrieved filed Writ Petition No,1818 of 1999 which was disposed of by this Court vide order dated 8-2-1999 with the observation that the petitioner may file an application before the Tribunal for annulment of the impugned order on the ground of fraud and misrepresentation. If such an application is filed' the same shall be decided on its own merits, after proper inquiry within 3 months. The President, LDA Tribunal dismissed the application of the petitioner vide order dated 4-12-2000 hence the present writ petition.

2. Learned counsel for the petitioner submits that order dated 8-2-1999 is binding between the parties. He further submits that Tribunal is bound to decide the controversy between the parties within the parameters prescribed by this Court in the order dated 8-2-1999. He further submits that order dated 8-2-1999 is binding between the parties. He summed up his arguments that the direction of this is binding on each and every organ of the State by virtue of Article 201 of the Constitution.

3. Learned counsel for the respondents submits that impugned order is in accordance with law as the ingredients of section 12(2), C.P.C. Are not attracted as alleged by the petitioner in their application filed by the petitioner before respondent No,2. He further submits that respondent No,2 decided the controversy after applying its independent mind in accordance with law. He further urged that the impugned order is in accordance with law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-- ' PLD 1969 SC 167 (Ihsan Ali and others' case), 1985 SCM R 153 (Javed Sheikh's case), 2002 SCM R 403 (Amir Khan and others' case), 2000 SCM R 677 (Bahadar Khan's case), 1998 SCM R 107 (Zulfiqar Ali's case), 1997 SCM R 1635 (Muhammad Ramzan's case), 2000 SCMR 1316 (Sheikh Zaman's case) and PLD 2002 SC 500 (N.D.F.C., Karachi's case).

' He further submits that respondent No,2 has decided the case in favor of the respondent NG. 1 on the basis of the decree secured by respondent No,1 from the competent Civil Court. The same is still intact. Petitioner did not challenge the same by filing an application under section 12(2), C.P.C. Or to challenge before any higher forum. He further submits that respondent No,1 filed Writ Petition No,18670 of 1997. Which was disposed of by this Court vide order dated 20-8-1997 with the observation that the petitioner if so advised, may move an application before respondent No,1 seeking necessary relief by way of transfer of sufficient number of plots in Johar Town Scheme. In case such application is filed, the same shall be decided on its own merits, after proper inquiry, within three months. Respondent No,1 filed the contempt application which was disposed of by this Court vide order dated 13-4-1998 on the undertaking of the Legal Advisor of the petitioner who had placed on record copy of the order dated 6-11-1997 passed by the Provincial Ombudsman and submits that Mohtasib Aalah Punjab has already dealt with the grievance of the petitioner by observing that the LDA has undertaken to compensate the petitioner in M.A. Johar Town, Scheme for the satisfaction of her claim after obtaining her consent. Similar undertaking had been made by the learned Legal Advisor of the respondents before the Division Bench in I.C.A. No,571 of 1998.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:

(i) Respondent No,1 filed reference before respondent No,2 under section 30 of the Land Acquisition Act, 1894.

(ii) Respondent No,2 accepted the reference vide order dated 25-2-1986 in the presence of the learned counsel for the parties which is to the following effect: ' Mr. Abdul Majeed, Advocate for Petitioner.

' Mr. Muhammad Ashraf Kumma, Advocate for L.D.A.

(iii) Petitioner filed Writ Petition No,1818 of 1999 after considerable delay i,e, 13 years which was disposed of by this Court vide order dated 8-2-1999 with the observation that petitioner may file an application for setting aside the impugned order on the ground of misrepresentation or fraud. If such an application is filed, the same shall be decided on its own merits after proper inquiry within 3 months.

(iv) Respondent No,2 dismissed the application filed by the petitioner before respondent No,2 vide order dated 4-12-2000.

(v) Petitioner also concealed the material facts in the contents of writ petition which ate as follows:

(i) Respondent No,1 filed Writ Petition No,18670 of 1997 which was disposed of by this Court in limine vide order dated 20-8-1997 and petitioner was directed to file an application before the petitioners and petitioners were directed to decide the same in accordance with law.

(ii) The petitioner failed to decide the application of respondent No,l.

(iii) Respondent No,1 filed Criminal Original No,198-W of 1998 which was disposed of by this Court vide order dated 13-4-1998 on the statement of the Legal Advisor of the L.D.A. Who had placed on record copy of order dated 6-11-1997 passed by the Provincial Ombudsman and stated that Mohtasib Punjab Aalah had already dealt with the grievance of the petitioner/present respondent No,1 by observing that the L.D.A. Had undertaken to compensate the petitioner in M.A. Johar Town Scheme for the satisfaction of her claim after obtaining her consent.

(iv) The legal Advisor of the L.D.A. Had also made similar undertaking before the Division Bench in I.C.A. No,571 of 1998.

'In case the aforesaid facts are put in juxtaposition then it is crystal clear that the petitioner concealed the material facts in the contents of the writ petition as the petitioner did not mention a single word about the filing of a writ petition and contempt by respondent No,1 before this Court qua the plot in question. It is settled principle of law that Constitutional remedy is a discretionary in character. Since the petitioner does not approach this Court with clean hands, therefore, I am not inclined to exercise my discretion in favor of the petitioner as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- ' 1969 SCM R 141 (Abdur Rasheed's case), 1983 SCMR 1996 (Ghulam Mustafa's case), 1993 SCMR 1462 (Rana Muhammad Arshad ' s case).

' It is pertinent to mention here that reference of respondent No,1 was decided by respondent No,2 in presence of the learned counsel for the parties i,e, petitioners and respondent No,1 vide order dated 25-2-1986. Petitioner filed Writ Petition No,1818 of 1999 after considerable delay which was disposed of with the aforesaid observations. It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties: "The L.D.A. Had challenged the ownership of the petitioner, Mst. Shamim Akhtar'on the ground that the transfer of the land in her favor by the Settlement Department was without lawful authority.

From perusal of record it reveals that after a detailed discussion and mainly on account of a Civil Court decree having been passed in her favor and she being in actual physical possession my learned predecessor was pleased to hold her entitled to claim compensation. If the documentary evidence produced by the L.D.A. Before my learned predecessor had been misread it can be successfully argued that some fraud or misrepresenting had been practised by the respondent.

Misreading and non-reading of evidence cannot be quoted with fraud or misrepresentation and can hardly be treated as a ground for annulment of the impugned order in exercise of the jurisdiction vested in this Tribunal by virtue of section 12 (2) read with section 151, C.P.C. The Tribunal exercises jurisdiction of a Civil Court and all questions relating to title had to be resolved by the Tribunal and it cannot be successfully argued that the impugned order is without jurisdiction.

Above all the applications under section 12(2) read with section 151, C.P.C. Is hopelessly time- barred."

5. The aforesaid operative part clearly reveals that the learned Tribunal had passed the order after applying its independent mind. Keeping in view the observation of this Court's order dated 8-2- 1999, word "merits" is defined in Black's Law Dictionary as follows:-- "As a legal term, refers to the strict legal rights of the parties."

' Merits includes limitation prescribed under the law. The limitation is prescribed by the law to file an application under section 12(2), C.P.C. Is three years. In arriving to this conclusion I am fortified by the law laid down by the Hon'ble Supreme Court in Mst. Kubra Begum's case (1993 SCM R 2096).

Even otherwise the contents of the application filed by the petitioner under section 12(2), C.P.C.

Does not fall within the para-meters prescribed in the said provisions of law.

' In view of what has been discussed above, this writ petition has no merits and the same is, dismissed.