PLJ 2021 Lahore 213
Constitution of
----Art. 199--Confirmation of consolidation scheme--Appeal--Partly accepted--Filing of ROR--Dismissed--Review petition dismissed--Principle of laches--Concurrent decisions--Matter in issue pertains to consolidation proceedings which contains factual controversy and same cannot be resolved in constitutional jurisdiction and this Court ordinarily avoids to re-appraise such factual controversy in its writ jurisdiction as it cannot sit as an appellate Court against concurrent decisions of Consolidation Revenue Authorities--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned orders and has also not identified any jurisdictional defect calling for interference by this Court--Petitions was dismissed. [Pp. 220 & 221] B & C
1970 SCMR 292, PLD 1974 SC 139, 1989 SCMR 1817, 2006 SCMR 951 and 2013 SCMR 906 ref.
Vigilantibus Non Dormierttibus Jura. Subveniunt--
----Vigilance about rights--Law will assist only those who are vigilant about their rights and not those who sleep over them.
[Pp. 214 & 215] A
Rai Muhammad Panah Bhatti, Advocate for Petitioner.
Mr. Asif Mehmood Cheema, Additional Advocate General.
Messrs Mushtaq Ahmad Dhoon and Naila Mushtaq Dhoon, Advocates for Respondents (in W.P. No. 15472/2013).
Mr. Aqib Javed, Advocate for Respondents (in W.P. No. 15473/2013).
Date of hearing: 4.11.2020.
PLJ 2021 Lahore 213
Present: Ch. Muhammad Iqbal, J.
AZIZ-UR-REHMAN--Petitioner
versus
MEMBER (J.V), BOARD OF REVENUE, PUNJAB, LAHORE etc.--Respondents
W.P. No. 15472 of 2013, heard on 4.11.2020.
Judgment
Through this single order, I intend to decide the titled writ petition as well as connected Writ Petition No. 15473/2013, as common questions of law and facts are involved in both these cases.
2. Through these writ petitions the petitioner has challenged the order dated 07.05.2010, passed by the Executive District Officer (Revenue), Mianwali who accepted the appeal of the Respondent No. 3, modified the wandajat made in consolidation proceedings; and the order dated 21.11.2011, passed by the Member (Judicial-V), Board of Revenue, Punjab who dismissed the revision petition filed by the petitioner.
3. Brief facts of the case are that consolidation scheme of Mauza Bhamb Tehsil Piplaii District Mianwali was confirmed on 29.09.2001. The petitioner and others filed appeal before the Consolidation Officer which was partly accepted vide order dated 24.03.2005 and some amendments were made in wandajats. The petitioner and others filed two separate appeals before the Executive District Officer (Revenue), Mianwali who dismissed the appeal of the petitioner and partly accepted the appeal filed by Abdul Rehman etc. vide two separate orders dated 07.05.2010. Against the said order, the petitioner filed two revisions i.e. ROR No. 1605 & 1606 of 2010 which were dismissed by the Member (Judicial-V), Board of Revenue, Punjab vide single order dated 21.11.2011. The petitioner filed two review petition No. 101 & 102 of 2012 which were also dismissed by the Member, Board of Revenue vide order dated 30.04.2012. Hence, this writ petition.
4. I have heard the arguments of learned counsels for
the parties and have gone through the record with their able assistance.
5. The petitioner challenged the order dated 21.11.2011 passed by the Member, Board of Revenue, whereas instant writ petition was filed by the petitioner on 05.06.2013 i.e. after lapse of about 01 year & 06 months, as such, this petition is duly hit by the principle of laches.
Unreasonable delay in pursuing a right or claim---almost always an equitable one--in a way that prejudices the party against whom relief is sought.
It is better to have a glimpse over the Ancient Law in order to know the right connation of the term “Laches.”
Early in its history, Chancery developed the doctrine that where the plaintiff in equity delayed beyond, line period of the statute applicable at law, relief would be refused on the ground of laches even through no specific prejudice to the defendant was shown. Today, in most slates there are statutes of limitation applying to suits in equity. Despite these, however, the doctrine still holds that even if the delay is for a shorter period, of time than that of the statute, it may still bar equitable relief if it is unreasonable and prejudicial to the defendant.
The definition of word/term “laches” as per Law Lexicon is as under:
“Laches : Laches or lachesis an old French word for slackness or negligence, or not doing”.
Laches in law: Laches in law is neglect to do something which by law a man is obliged to. do.”
7. The petitioner was well aware about the impugned order but he did not challenge the same within a reasonable time, as such, principle of laches is attracted in this case. Reliance in this regard is placed on Shaikh Muhammad Hafiz Ullah vs. Ghulam Yasin and others (1970 SCMR 41) wherein the Hon’ble Supreme Court of Pakistan held as under:
“There was also laches on the part of the petitioner in approaching the High Court. The impugned order was passed in 1962 and the Writ Petition was filed only in 1966. This by itself was a sufficient ground for denying relief to the petitioner.”
In another case cited as Settlement Authority through the Chief Settlement Commissioner,
“The delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and laches. It was the duly of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the constitution petition.”
Further reliance is placed on a case cited as Mst. Hawabai and others vs. Muhammad Siddique and another (1987 SCMR 591), wherein
the Hon’ble Supreme Court of Pakistan held that the case which suffers from the doctrine of laches can be dismissed on this ground alone.
In case cited as Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another vs. Syed Ashfaque Ali and others (PLD 2003 SC 132), the Hon’ble Supreme Court of Pakistan held as under:
“15 Law is well-settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. One who seeks equity must show that equities lean in his favour.”
The Hon’ble Larger Bench of the Hon’ble Apex Court in a case cited as Jawad Mir Muhammadi and others vs. Haroon Mirza and others (PLD 2004 SC 472), held as under:
“27 .... It is a settled proposition “that the delay defeats equities or equity aids the vigilant and not the indolent”. Relying on the above maxim this Court as well as the High Courts of the Country have refused to come to the aid of a party who had. not been diligent, vigilant and. acted in a prudent manner. It will be appropriate to reproduce the words of Lord Camden L.C. while dealing with the issue of delay and laches from the judgment of Smith v. Clay (1767) 3 Bro. C.C.639n. at 640n observed as under:
A Court of equity has always refused its aid to stale demands, where a. parly has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting the Court is passive, and does nothing.
28. It will also be useful to reproduce a passage from the book titled Snell’s Equity by John Meghee 13th Edition which appear at page 35 as under:
Now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically 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 neglect 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 lapse of time and delay are most material.
29. From a perusal of the passage/quotations reproduced hereinabove the question of delay/laches in filing the constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for the delay in filing a constitutional petition, the same cannot be overlooked or ignored of course, having regard to the facts and circumstances of each case. It will also be useful to reproduce another passage from the same book appearing on page 35 as under:
Laches essentially consists of a substantial lapse of time coupled with the. existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant of abandon or release his right, or if it has resulted, in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to be business (for the claimant should not be allowed to wait and see if it prospers), or if the claimant has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay.
30. The appellants being fully aware of raising of construction of the three floors in dispute by the Builders did not immediately approach the High Court by way of constitutional petition and allowed a period of 16 months to lapse before approaching the High Court during which period the construction was continuously in progress and, was completed in accordance with the revised, plan. The inaction of the appellants for a period of 16 months whuld certainly lead to a presumption that they had not only agreed to the construction of the three floors in dispute but had induced the builder and all other persons concerned that they had no objection to the construction thereof. In the case of Ardeshir Cowasjee 1999 SCMR 2883 the facts and circumstances did not lead to a presumption either that the aggrieved persons had surrendered their rights which according to them were violated by the . construction of the high rise buildings or given an inducement or understanding to the builders and all other concerned persons that they had accepted the raising of the high rise buildings as a result of which this Court found that the petition was not hit by laches. However, as enunciated above the facts in the case in hand are totally different and the delay of 16 months could not be overlooked or ignored in the absence of satisfactory and plausible explanation.”
Another reliance is placed on a case cited as State Bank of Pakistan through Governor and another vs. Imtiaz Ali Khan and others (2012 SCMR 280), wherein the Hon’ble Supreme Court of Pakistan held as under:
“28 .... Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is bit by the. doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent.”
This Court dismissed a Writ Petition No. 68-R/2002 on the ground of laches vide judgment dated 07.07.2015 which has been upheld by the Hon’ble Supreme Court of Pakistan in a recent judgment cited as Allah Rakha (deceased) through LRs and others vs. Additional Commissioner (Revenue) Gujranwala and others (2020 SCMR 502) with the following observation:
“4. In the instant case, when the matter was scrutinized by the Civil. Court, Plaint was rejected and the Appeal was also dismissed, then challenging the same order dated 09.02.1970 of the Settlement Authorities through a Writ Petition filed in the year 2002 was rightly dismissed by the learned High Court. The principle of laches was also rightly applied, keeping in view the principle of laches in mind.”
In the light of a judgment of this Court cited as Mian Aurangzeb Noor vs. Rent Controller,
“8. Lastly it may be stated that the learned Rent Controller on 11.5.2009 passed order for striking off the defence and the petitioner after a lapse of more than one year approached this Court through instant petition for setting aside the impugned order. The Hon’ble Supreme Court in the cases of Manager, Jammu & Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) and Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and other (PLD 2011 SC 676) has held that aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within a “reasonable time” and interpreted “reasonable time” to be 90 days.” The present petition, therefore, suffers from laches.”
In this regard, this Court in a case cited as Sui Northern Officers Cooperative Housing Society Ltd. vs. Member (Judicial-V), Board of Revenue, Punjab and others (2017 YLR 1348), held as under:
“16 …. It is interesting to note that the original allottee has not challenged, the impugned order dated 19.01.2015 till to date, whereas the petitioner, who is subsequent, purchaser filed the instant petition calling in question the vires of aforesaid order after the lapse of 2 years 6 days from the date of passing of the same, as such, the principle of laches is fully attracted in the instant case, so, the instant writ petition is also not maintainable on this score.”
In another case cited as Province of Punjab through Secretary (Colonies), Board of Revenue, Punjab and others vs. Muhammad Yaqoob (2020 CLC 1390), has observed as under:
“13. Furthermore, the respondent asserted in the writ petition that the allotment was made in his favour in the year 1953 whereas he filed Writ Petition for implementation of said order in the year 1991 i.e. after lapse of about 38 years rather he remained mum for a period of four decades and did not agitate the matter before competent forum, as such, principle of laches is also fully applicable upon this case”
Reliance is also placed on Member, Board of Revenue/Chief Settlement Commissioner, Punjab,
8. The impugned order was passed on 21.11.2011 which has been challenged by the petitioners on 05.06.2013, after a considerable period, as such, this matter falls under the past and closed transactions which cannot be re-opened. Reliance is placed on Pakistan International Airlines Corporation vs. Aziz
“The petitioners are aggrieved by the dismissal of their constitution petition by the High Court whereby it declined to interfere with the order of the Board of Revenue affirming the order of the Additional Commissioner who had made certain adjustments in the consolidation scheme as result of which the petitioners were deprived of certain fields falling in Nian area. It was not their case that as a result of these adjustments they were given less land than their actual entitlements. It has already been held by this Court that the orders made by
the Consolidation authorities with regard to allocation of
land are not fit matters which can be agitated in writ jurisdiction; see Muhammad Hussain Munir v. Sikander (PLD 1974 S.C.I39). The High Court was therefore justified in dismissing the Constitution petition of the petitioners. Leave is refused.
Reliance is also placed on Asad Riaz vs. Member, Board of Revenue, Punjab, Lahore and 4 others (1997 SCMR 1611), wherein it has been held as under:
“3. Having heard the learned counsel at length and having gone through the orders passed by the Consolidation Officers as well as the order of the learned Member, Board of Revenue, we are of the considered view that the pleas raised are without merit. The Proviso to subsection (4) of Section 13 of the Consolidation of Holdings Ordinance provides that no order shall be passed reversing or modifying any proceedings or order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard. Admittedly, rights of Syed Riaz Hussain, Shah, Mst. Musarrat Riaz, Imdad Hussain and Ms. Usma Riaz have not been affected in any manner by ‘modification in the scheme pertaining to the petitioner and respondents. Only a piece of land measuring 4 kanals of Khasra No. 33/5 has been excluded from the Wanda of the petitioner and in lieu thereof 4 Kanals of land of Khasra No. 34/2/3 Min. has been included. This modification was effected after holding that the said land is contiguous to the main Block, of the respondents and by taking the same away, the main plot of the petitioner does not get disturbed and that the said arrangement appears to be suiting the convenience of both the parties who were also found agreeable to the said modification. These findings were not challenged before us. It was not the case of the learned counsel for the petitioner that the land withdrawn from him was owned or possessed by him
or that his entitlement was reduced in any manner. The question as to which piece of land, Khasra number or Killa Number should have, been given to one or the other party falls for determination by the Revenue Authorities exclusively. The High Court, in Constitutional jurisdiction, cannot sit in judgment against decisions of Revenue Authorities in such matters.
Further reliance is placed on Ghulam Rasool and others vs. Member (Consolidation), Board of Revenue and others (2004 SCMR 587), the relevant portion whereof is as under:
“7. The review of the case law by both sides does indicate that the precise allocations and demarcations have to be left with the Consolidation Officer and this Court, in exercise of jurisdiction under Article 199 of the Constitution, should not reappraise such factual controversies. It should concern itself with the legality of the orders and not the propriety of the same. In any case, after hearing the two sides as well as the learned Assistant Advocate-General, I have not been persuaded to hold that the impugned directions of the learned M.B.R, in any manner are unjust or have caused miscarriage of justice.”
10. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders and has also not identified any jurisdictional defect calling for interference by this Court.
11. In view of above, these writ petitions are dismissed being hit by laches as well as devoid of any merits.
(Y.A.) Petition dismissed
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