PLJ 2000
Present: CH. IJAZ AHMAD, J.
NATIONAL BANK OF PAKIST AN -Petitioner
versus
GOVERNMENT OF
AND HUMAN RIGHTS DIVISION,
and 8 others-Respondents
W.P. No. 19537 of 1999, decided on 7.3.2000,
Contract Act, 1872 (IX of 1872)--
—-S. 188-Constitution of
ORDER
The brief facts giving rise to this writ petition are that land measuring 3 and half acre of Respondents Nos. 4 to 9 situated in Missan Kallar District Sheikhupura was acquired under the provisions of Land Acquisition Act by Highway Department for construction of Motorway Project. The Land Acquisition Collector assessed Rs. 6,58,204.00 for the land in question as amount of compensation and voucher to this effect was issued on 9-12-1993. Respondents Nos. 4 to 9 authorised Respondent No. 10 through General Power of Attorney to pursue the matter qua the acquisition proceedings. Asghar Ali Respondent No. 10 opened account in his own name in N.B.P. Gulla Mandi Branch Sheikhpura; the aforesaid voucher was deposited in his own name which was presented for collection to District Accounts Officer Sheikhupura by the N.B.P. on the same day and was credited in P.L.S. Account in the name of said Asghar Ali. Respondents Nos. 4 to 9 did not receive a single penny out of the compensation received by Respondent No. 10 on their behalf from the Land Acquisition Collector High Way Department, who approached through written application to I.G, Police for registration of a case against Respondent No. 10 on 11-30-1994 but the Police refused to interfere in the matter as the same pertained to private parties on financial matters. Respondents Nos. 4 to 9 filed complaint before ( ^/u-J^jU* ) who accepted the same vide order dated 6-7-1996 after providing personal hearing to complainant and petitioner. The petitioner being aggrieved filed representation before President of Pakistan under Article 32 of Presidents Order No. 1 of 1983. The same was disallowed by the Prime Minister and intimated to the petitioner vide letter dated 10-9-1999; hence the present writ petition.
2. The petitioner's counsel got adjournment on 28-10-1999 to find out from the office of Respondent No. 1 whether impugned letter is the final order passed on his appeal by the competent authority or it is merely an intimation or speaking order is separate. The request was allowed. The petitioner filed C.M. No. 225-2000 alongwith letter of Respondent No. 1 dated 29-2-2000 which reveals that the President rejected the representation of the petitioner.
3. Petitioner's counsel submits that (u )i~~*£ (J l*> ) has passed the order without associating Respondent No. 10, therefore, order of Mjl (J \jt ) is not sustainable in the eyes of law; he urged that, order of ( '•*; t_f~~J ij l»9 ) is result of mis-reading and non-reading of record as Respondents No. 4 to 9 is specifically authorised Respondent No. 10 to receive and deposit and withdraw the amount in question, therefore, order of ( ^1 (_-~X/ (^ O.J ) is the result of mis-reading and non-reading of record; that Respondent No. 1 informed the petitioner that representation of the petitioner was dismissed by the Prime Minister vide letter dated 10-9-1999; subsequently informed the petitioner vide letter dated 29-2-2000. The representation was dismissed by the President of Pakistan; that impugned letters of Respondent No. 1 intimating the petitioner that representation/appeal of petitioner was dismissed by President or Prime Minister is not sustainable in the eyes of law as both the letters do not reveal at all that the appeal was dismissed by the President or Prime Minister with reasons after applying mind; that the impugned letters itself reveal that appeal was dismissed by the Chief Executive without providing personal hearing to the petitioner, therefore, same is not sustainable in the eyes of law.
4. I have given my anxious consideration to the contention of learned counsel for the petitioner and perused the record. It is better and appropriate to reproduce the operative part of General Power-of-Attorney executed by Respondents Nos, 4 to 9 in favour of Respondent No. 10 and operative part of order of ( {&! «_^X«£ $ & » *i dated 6-7-97, to resolve the controversy between the parties :— "By this Power-of-Attorney we appoint Mr. Asghar Ali as our Attorney in our name and on our behalf in respect of our property situate at Mauza Missan acquired by the Highway Department for its Motorway Project and the aforesaid Attorney is authorised to receive the compensation amount from the Highway/Land Acquisition Collector etc. and to do the following acts or things in connections with the aforesaid purposes.
1. To engage or appoint any legal practitioner to conduct the said case.
2. To sign, verify the pleadings, applications or to file written statement.
3. To make and present to the Court application in connection with any proceedings in the suit,
4. To produce or summon or receive back documentary evidence.
5. To deposit and withdraw any money for the purpose of any proceeding.
* I 6. To file an application for execution of a decree or order passed ' in the said suit and to sign and verify such application.
7. To receive any money due to us under such decree or order and to certify payment, to the Court.
11. Generally to do all other lawful acts necessary for the conduct of the said case. The operative part of the impugned order of ( 'J*;^-^ (J \t 9 ) is as under :
"6. It is manifest from the documents and evidence brought on the record that Asghar Ali with active connivance and collaboration of Muhammad Rafiq illegally opened the account and got the money of the complainants deposited in his own account and subsequently withdrew the same to deprive the complainants, the lawful owners of the money.
7. Since the tainted transaction took place in the Galla Mandi Branch of the Bank by the Manager in his official capacity in the course of business, the employer, that is, the Agency, is liable for the acts of omission and commission of its Manager. The Agency has failed to establish that the fraud was perpetrated exclusively by Asghar Ali, the attorney, and its Manager was not involved and its objection that the matter can best be determined in a
8. Having regard to the facts and circumstances stated above, it is recommended that the Agency shall pay an amount of Rs. 6,58,204.00 (rupees six lacs fifty eight thousand two hundred and
four only) to the complainant. It may recover the same from its Manager Muhammad Rafiq and attorney Asghar Ali". Mere reading of the aforesaid clauses of Power-of-Attorney clearly reveals that Respondent No. 10 was not authorised to receive the compensation and deposit the same in his own account. The learned ( $*f <^*!jt $ (j 9 ) has taken lot of pain after providing sufficient opportunities to the petitioner to come to some conclusion as fraud has been committed with Respondents Nos. 4 to 9 with the active connivance of Manager of N.B.P. Galla Mandi Branch Sheikhupura. It is admitted fact that the impugned letters of Respondent No. 1 does not reveal any reason which is only intimation to the petitioner that representation/appeal of petitioner was dismissed. The petitioner failed to place on record order of President or Prime Minister as per undertaking by the petitioner's counsel before this Court on 28-10-1999. According to the Rules of Business; the Chief Executive has always passed the order on the summary submitted by the concerned Division before him but the petitioner has not placed on record any summary to the concerned Division. ( /A"/£_^»<^ $\*-> )> nas given sufficient reasons for accepting complaint of Respondents Nos. 4 to 9 but the learned counsel for petitioner has raised contention that the impugned order of ot sustainable in the eyes of law as the same was passed without associating Respondent No. 10; that Respondent No. 10 was duly authorised to withdraw the amount on behalf of Respondents Nos. 4 to 9 as per Clauses 5 & 7 of General Power-of-Attorney executed by Respondents Nos. 4 to 9 in his favour. I am afraid that this contention is not sustainable in the eyes of law; all the conditions of General Power-of-Attorney must be read together which are not shown such type of authorization to Respondent No. 10. The transaction was made by N.B.P. in violation of Banking instructions as huge amount was withdrawn without seven days notice which was pre-condition to withdraw an amount exceedings Rs. 15,000/- from PLS account; coupled with the fact that during the Banking inquiiy by Mr. Munir Ahmed Bank Officer and opinion of Standing counsel of Bank, was sought who took an contrary view saying on the basis of Power of Attorney, the General Power of Attorney was not authorised to open account in his own name to Respondent No. 10. The plea of the Manager was rejected that he took the usual step. B The petitioner has invoked Constitutional jurisdiction which is discretionary in nature. Since the substantial justice has been done, therefore, I am not inclined to exercise my discretion in favour of the petitioner on the well known principle that he who seeks equity must come to the Court with clean hands as per principle laid down by the superior Courts in the following judgments: Nawabzada Ronaq All's case (P.L.D. 1973 SC 236) ; Rana Muhammad Arshad's case (1998 SCMR 1462) ; G.M. Malik's case (1990 CLC 1783) and (PLD 1974 S.C. 106). (1973 SCMR 127) Wali Muhammad & others vs. Sakhi Muhammad In view of what has been discussed above, there is no merits in this writ petition and the same is dismissed.
(A.A.T.) Petition dismissed.
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