(a) Customs Act (IV of 1969)---

----Ss.33 & 32---Constitution of Pakistan (1973), Art. 199-- Constitutionalpetition--- Maintainability---Refund, claim of --Limitation---Payment made by a party by way of customs duty, sales tax, excess duty etc. inadvertently, mistakenly, in ignorance of exemption provided by any statute, rules or regulations, notifications whether voluntarily or involuntarily, the period of limitation of six months provided in S.33, Customs Act, 1969 would not be applicable and the affected party would be at liberty to claim the refund of the amount paid mistakenly or inadvertently either by filing a suit or a Constitutional petition---Essential requirements.

The object of providing limitation inter alia, in sections 32 and 33 of the Customs Act, 1969 is to finalise the transactions within the period specified therein so that there may not be any adverse financial implication after the expiry of the period mentioned therein, for which provisions for contingency are made in a yearly budget.

The payment made by a party by way of customs duty, sales tax, excess duty etc. inadvertently, mistakenly, in ignorance of exemption provided by any statute, rules or regulations, notification(s) whether voluntarily or involuntarily then the period of limitation of six months provided in section 33, Customs Act, 1969 would not be applicable and the affected party would be at liberty to claim the refund of the amount paid mistakenly or inadvertently either by filing a suit or a Constitutional petition.

For claiming refund of tax or duty or other charges paid by way of mistake or inadvertence or under a wrong provision of law, rule or regulation the limitation of six months provided in section 33 of the Customs Act, 1969 would not be applicable, was not meant to be understood so as to assume that the party would be free to claim refund of a tax or any other charge or levy paid under a mistake of fact or law at his sweet-will at any time after the expiry of 20 years. In such a case if a suit was filed for refund then it ought to have been filed within the statutory period provided under the relevant Article of First Schedule to the Limitation Act, or if the refund of the same was to be claimed by invoking Constitutional jurisdiction of High Court then the petitioner ought to have approached the Court promptly meaning thereby that the petition should not suffer from laches which might defeat the claim.

Though the period of six months provided in section 33 of the Customs Act, .1969 would not be applicable in the present case yet the petitioner would not be free to challenge and to initiate legal proceedings for the refund of the excessive amount at his sweet-will after a period of fifteen years. The petitioner was required to strictly follow the provisions of the statute of limitation for filing a suit and to have acted prudently, diligently and promptly if it chose to invoke the. Constitutional jurisdiction of High Court. The petitioner's inaction for fifteen years had allowed the period of three years for filing the suit for refund of the excess payment by way of customs duty and sales tax under section 32 of the Customs Act to elapse. The inordinate delay in filing the Constitutional petition, which had gone unexplained .as the reasons advanced therefore were without any weight and substance would be a stumbling block in the way the maintainability of Constitutional petition on the ground of laches. Challenge or filing objections in 1988 after 10 years of the impugned assessment would not furnish them fresh period of limitation, from the date of the order by which their objections were decided on the principle that once on account of inaction, indolence, or imprudence a party had allowed the period of limitation for initiating legal proceedings to elapse or had unnecessarily delayed then a representation,, claim, application, review petition filed/submitted after expiry of the period of limitation for initiating such proceedings would not be entertainable and would not revive the period of limitation for filing suit and a Constitutional petition filed by the defaulting party would suffer from laches.

In the present case the petitioner failed to establish that it agitated the impugned assessment before the Customs Authorities before 1988 or filed a suit for refund of the excess payment by way of customs duty and sales tax within the statutory period. The petitioners were not diligently pursuing the departmental remedies before, the Custom Authorities and in not filing the civil suit for refund would not entitle them to invoke the Constitutional jurisdiction of High Court as they had not acted prudently which was one of the essential requirements for invocation of the Constitutional jurisdiction of High Court.

The petitioners had .not approached the High Court with clean hands. They have suppressed material facts inasmuch as they did not clearly state as to when they challenged the levy of customs duty and lodged a claim for refund of excess customs duty and the entire sales tax paid by them. Even during the course of arguments petitioners did not come forward with clear and specific statement as to when the petitioners had taken up the matter prior to 1988 with the respondents for challenging the levy and claiming the refund. The petitioner also failed to file a suit for recovery of excess payment.

Unexplained delay in filing a Constitutional petition would be fatal depending upon the facts and circumstances of the case.

Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64 fol.

Abdul Aziz Ayoob v. Assistant Collector of Customs PLD 1990 Kar. 378; Mushtaq Ahmed and others v. Government of Pakistan and others 1998 SCMR 749 = 1998 PLC (C.S.) 488; Manzoor Hussain and, 6 others v. Zulfiqar Ali and 8 others 1983 SCMR 137; Deen Carpets Limited v. Iqbal Ghuman, I.T.O. and another PLD 1989, SC 516; Muhammad Aman and 2 others v. Atta Muhammad and another 1982 SCMR 270; Allah Nawaz Sheikh v. Punjab Appellate Tribunal, Lahore and another 1997 SCMR 573 and Shahbaz Khan Muhammad v. Islamic Republic of Pakistan and another 1975 SCMR 4 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court ---Laches-- Effect---Inordinate delay in filing Constitutional petition, which had gone unexplained, and reasons advanced being without any weight and substance, would be a stumbling block to the maintainability of Constitutional petition- --Principles.

Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64; Abdul Aziz Ayoob v. Assistant Collector of Customs PLD 1990 Kar. 378 Mushtaq Ahmed and others v. Government of Pakistan and others 1998 SCMR 749 = 1998 PLC (C.S.) 488; Manzoor Hussain and 6 others v. Zulfiqar Ali and 8 others 1983 SCMR 137; Deen Carpets Limited v. Iqbal Ghuman, I.T.O. and another PLD 1989 SC 516; Muhammad Aman arid 2 others v. Atta Muhammad and another 1982 SCMR 270; Allah Nawaz Sheikh v. Punjab Appellate Tribunal, Lahore and another 1997 SCMR 573 and Shahbaz Khan Muhammad v. Islamic Republic of Pakistan and another 1975 SCMR 4 ref.

Aziz A. Shaikh for Petitioner.

Sajjad Ali Shah, Deputy Attorney-General for Pakistan for Respondents.

Date of hearing: 28th March, 2003.

JUDGMENT

SAIYED SAEED ASHHAD, C.J.---In this Constitutional petition, the petitioner has sought the following reliefs:---

(1)Declare that exemption of duty and taxes under S.R.O. 695(I)/77 and 697(I)/77 both, dated 4-8-1977 are fully attracted in this case.

(2)Declare that impugned assessment @ 120% of Customs duty and 10% of Sales Tax is arbitrary and violative of specific provisions of S.R.O. 695 (I) /77 and 697(I)/77 both, dated 4-8-1977, hence of no legal consequence.

(3)Declare the word "identifiable, as for use in or with machinery" means all components parts and assessaries admittedly used for operation of said machinery.

(4)Declare that respondents cannot retain the money on technical plea of time bar on which they have no just claim.

(5)Declare respondent No.2 to refund admissible customs duty and taxes charged in excess of 40% ad valorem and whole of sales tax amounting to Rs.414,149 paid by petitioner vide Bill or Entry No. 1026, dated 24-7-1978 and CRA/65-F/78-79-II-KC paid on 24-8-1987.

(6)Grant cost of petition.

(7)Grant other relief/reliefs as deemed appropriate by this Hon'ble Court.

The brief facts of the case are that the petitioner for setting up a textile mill at Khalabad, Hazara, N.-W.F.P. imported machinery, equipments, components and parts from China including "eass Woll Feit" for raping of Steam and Amonia piping of Air conditionaring/refrigeration plant (hereinafter referred to as "the imported consignment"). The imported consignment was assessed by respondent No.2 at the rate of 120% customs duty and 10% sales tax on import value which according to the petitioner was contrary to the provisions of Notifications No. 695(I)/77 and 697(I)/77 both, dated 4-8-1977, according to which the imported consignment was to be assessed at 40% customs duty and no sales tax was to be levied. The petitioner's grievance is that in doing so the petitioner was made to pay Rs.414,149 in excess of the customs duty of Rs.143,671 which the petitioner was liable to pay on the imported consignment. The petitioner approached the relevant and concerned authorities for persuading them that the imported consignment was to be assessed at 40% customs duty and no sales tax was to be levied and for refund of amount of Rs.414,149 but to no avail and ultimately the request of the petitioner was declined by respondent No. 1 vide letters, dated 28-7-1990 and 5-9-1990. The petitioner filed a review Application which also failed. Having no other alternate and efficacious remedy the petitioner invoked the Constitutional jurisdiction of this Court for redress of his grievance.

Dr. S.M. Tariq Huda, Assistant Collector of Customs, Appraisement (Law) filed his counter-affidavit on behalf of respondent No.2, Collector of Customs, wherein he stated that the petitioner had never sought assessment of the imported consignment in terms ,of S.R.O. No.695(I)/77 and No.697(I)/77 both, dated 4-8-1977. Factually it was stated that the petitioner had imported "Glass Wool Feit" which was assessed to customs duty at the normal rate of 120% ad valorem and sales tax at 10% under the beading 7020 (ii) of Pakistan Customs Tariff and further that after making payment of the customs duty and; the sales tax levied as above the petitioner obtained clearance of the consignment in July, 1978. It was further submitted that the claim for refund of duty and sales tax was filed in 1988, that is after almost 10 years which was liable to be refused in view of the provisions of section 33 of the Customs Act which provided for making a claim for refund within six months from the date of clearance. It was further submitted that in spite of the above legal position the claim of the petitioner was considered on merits and was rejected on the ground that the imported consignment was neither recovered by the aforementioned two S.R.O.s nor was covered by S.R.O. No.820(I)/78 as the petitioner had not claimed the benefit of the aforesaid S.R.Os. at the time of assessment. It was further submitted that at the time of assessment/clearance of the imported consignment the petitioner had not lodged any objection relating to the assessment of customs duty at the rate of 120% ad volarem and sales tax at the rate of 10% which fact was also not disputed by them for almost 10 years and they could not be allowed to agitate the matter after such a long time. Finally it was submitted that the claim for refund of the customs duty and the sales tax was time-barred in view of section 33 of the Customs Act and the petition warranted to be dismissed.

We have heard the arguments of Mr. Aziz A. Shaikh, the learned Advocate for the petitioner, Mr. Sajjad Ali Shah, the learned DAG and have also perused the material on record.

With regard to the objection raised by the respondent that the claim for refund of the customs duty and the sales tax, on the ground that the imported consignment was wrongly assessed at the aforesaid duty and ought to have been assessed as per provisions of two S.R.Os. No.695(I)/77 and No.697(I)/77 both, dated 4-8-1977, was time-barred in view of section 33 of the Customs Act, Mr. Aziz A. Shaikh submitted that the bar of six months contained in section 33 of the Customs Act for claiming the refund was not applicable to payment of customs duty or other charges through inadvertence, error or mistake whether of fact or law which were not due by law 'or contract or otherwise. He further submitted that in such cases the aggrieved party was entitled to refund/repayment thereof in view of provisions of section 72 of the Contract Act. He further submitted that if the customs duty or any other levy which was charged and realised was outside the statutory authority then the provisions providing limitation of six months would not be attracted. He further submitted that the payment of customs duty or sales-tax levied by the respondents and realised from the petitioner was not authorized in view of S.R.O. No.695(I)/77 and S.R.O. No.697(I)/77, both, dated 4-8-1977 and the excess amount for customs duty as well as the amount realised by way of sales tax was not lawfully imposed as such the same were refundable irrespective of the period when the claim for refund was lodged. In the circumstances of the case the plea of limitation raised by the respondents would not hold good being violative of principles of morality and justice. He further submitted that the contention of the respondents that the petitioner had not raised any objection with regard to the levy of customs duty at the rate of 120% ad valorem and levy of sales tax at the rate of 10% at the time of assessment and had voluntarily paid the amount assessed by way of customs duty and sales tax would not be an obstacle in the way of the petitioner to claim the refund. In support for his above contention reliance was placed by Mr. Aziz A. Shaikh, on the case of Pfizer Laboratories Ltd. v. Federation of Pakistan and others reported in PLD 1998 SC 64. It will be appropriate to reproduce the relevant paragraph on which Mr. Aziz A. Shaikh had placed reliance with vehemence:

"The above resume of the case-law of Indian, England and Pakistani jurisdiction indicates that the latest judicial trend is to deprecate and to discourage withholding of a citizen's money by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him. It is also evident that claims for the refund of the amount paid as a tax or other levy on account of mistake as to want of constitutional/legal backing or because of exemption are at par........................................... The refund of such amounts are allowed by the superior Courts inter alia in India on the basis of section 72 of the Contract Act which provides that "a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it". Such refunds can be claimed either by filing a suit for the recovery of the amount for which the period of limitation applicable Would be three years under Article 96 of the First Schedule to the Limitation Act (which provides period of three years from the date mistake becomes known to the plaintiff) or the same can be recovered through a Constitutional petition if no disputed fact is involved. The Indian Supreme Court and the various Indian High Courts referred to in the cited case-law hereinabove and ordered the refund of the amounts involved in exercise of their Constitutional jurisdiction under Article 226 of the Indian Constitution. In Pakistan, Sindh and Lahore High Courts have also allowed the refund of such amounts under Article 199 of the Constitution in exercise of their Constitutional jurisdiction in the cases of Ghulam Abbas V. Member (Judicial), Central Board of Revenue (supra) and Kohinoor Industries Ltd., Faisalabad v. Ministry of Finance (supra), respectively."

From the above pronouncements made by the Supreme Court it stands established that the payment made by a party by way of customs duty, sales tax, excess duty etc. inadvertently, mistakenly, in ignorance of exemption provided by any statute, rules or regulations, notifications) whether voluntarily or involuntarily then the period of limitation of six months provided in section 33 would not be applicable and the affected party would be at liberty to claim the refund of the amount paid mistakenly or inadvertently either by filing a suit or a Constitutional petition. However, one aspect of the judgment which Mr. Aziz A. Shaikh has not referred to and is very pertinent with regard to the maintainability of this Constitutional petition is the observation of Supreme Court that for claiming refund of tax or duty or other charges paid by way of mistake or inadvertence or under a wrong provision or law, rule or regulation the limitation of six months provided in section 33 of the Customs Act, 1969 would not be, applicable, was not meant to be understood so as to assume that the party would be free to claim refund of a tax or any other charge or levy paid under a mistake of fact or law at his sweet-will at any time after the expiry of 20 years. The Supreme Court, further observed that in such a case if a suit was filed for refund then it ought to have been filed within the statutory period provided under the relevant Article of First Schedule to the Limitation Act, or if the refund of the same was to be claimed by invoking Constitutional jurisdiction of his Court then the petitioner ought to have approached the Court promptly meaning thereby that the petition should not suffer from laches which might defeat the claim. It will also be useful to reproduce the relevant paragraph of the judgment dealing with the above aspect of the case, which is as under:--

"However, we may clarify that the object of providing limitation inter alia, in sections 32 and 33 of the Act is to finalise the transaction within the period specified therein so that there may not be any adverse financial implication after the expiry of the period mentioned therein, for which provisions for contingency are made in a yearly budget. Though we have held that the instant case is not covered by section 33 of the Act by approving I the view taken by a Division Bench of the High Court of Sindh in the above case of Ghulam Abbas v. Member (Judicial), Central Board of Revenue referred to hereinabove, but it may not be understood that we are laying down that a party is free to claim refund of a tax or any other levy paid under a mistake of fact of law at his sweet-will at any time even after the expiry of 20 years. If a suit is to be filed for the refund, it should be within the statutory period provided under the relevant Article of the First Schedule to the Limitation Act, or if the refund of the same is to be claimed by invoking in aid the Constitutional Jurisdiction of a High Court, the petitioner should approach the Court promptly. The petition should not suffer from laches which may defeat the claim. We cannot approve the view that a party can claim the refund of an amount paid to a Government functionary under a mistake without any constraint of limitation as it would adversely affect the good governance in financial matters. "

In the instant case the imported consignment said to be "Glass Wool Feit" was imported in 1977 which was subjected to customs duty at the rate of 120 % ad valorem and to levy of sales tax at 10% on import value. The petitioner never objected to the above assessment and made payment of the sum of Rs.539,820 demanded by the respondents by way of customs duty and sales tax. From perusal of the material on record it cannot be ascertained whether the petitioner had lodged a claim within a reasonable time for refund of the alleged excess customs duty. Mr. Aziz A. Shaikh submitted that the petitioner had started agitating tile matter with the respondents immediately after making over the payment of the amount, claimed by way of customs duty and sales tax in 1978 but the respondents kept the matter pending without giving a decision thereon and did not furnish any information/intimation to the petitioner with regard to the action taken by them. The argument raised by Mr. Aziz A. Shaikh is devoid of force. Even if it be agreed for the sake of argument that the respondents did not reply to the petitioner with regard the decision/action taken by them on the objection/complaint/claim lodged by them for wrong levy of the customs duty and sales tax and for refund thereof, at least the petitioner could have produced a copy of the complaint/objection filed by them for challenging the assessment and claiming the refund of excess payment to establish that it acted vigilantly at the earliest possible time but no such material was brought on record stating that the petitioner was not in possession of any such material as considerable period had elapsed. Mr. Aziz A. Shaikh drew our attention to, page 43, which is an Office Memorandum of the Ministry of Finance and Economic Affairs (Revenue Division), Central Board of Revenue, dated 18-3-1992 whereby the claim of the petitioner for refund of the amount charged by way of extra customs duty and sales tax was finally turned down and it was submitted that the petition having been filed on 28-6-1993 would not suffer from such delay so as to be hit by laches. In this connection it is to be observed that on page 47 of the file, comments of C.B.R. on Office Memorandum No.(21) TAR-1/88, dated 17-8-1991 in respect of the refund of excess duty charged by Customs on the consignment of "Glass Wool Felt", which is the consignment in question, are available. From perusal of this document it transpires that the case of refund was agitated by Ministry of Production, which controls the petitioner's establishment, vide its letter, dated 23-10-1988 and the same was rejected by the Central Board of Revenue vide their OM, dated 28-7-1990. After rejection of the claim the petitioner through Ministry of Production's letter, dated 17-3-1991 again forwarded its case for exemption of customs duty above 40% and the entire sales-tax but it was again rejected by C.B.R.'s OM, dated 17-8-1991. In view of the above documentary evidence, which has been produced by the petitioner itself, the contention of Mr. Aziz A. Shaikh that the petitioner had challenged die levy of excessive customs duty and sales tax and had lodged claim for refund of amount paid by way of excessive customs duty and sales tax on the imported consignment immediately after clearance in 1978 does not hold' good. The petitioner has failed to bring on record any material which could substantiate its version that they had been agitating the matter of illegal levy of customs duty and sales tax at any time prior to 23-10-1988. It is to be noted that on 23-10-1988 more than 10 years had passed. As per pronouncement of the Supreme Court in the case of Pfizer Laboratories Ltd. v. Federation of Pakistan and others (supra) though the period of six months provided in section 33 ofthe Customs Act, 1969 would not be applicable in the present case yet the petitioner would not be free to challenge and to initiate legal proceedings for the refund of the excessive amount at his sweet-will after a period of fifteen years. The petitioner was required to strictly follow the provisions of the statute of limitation for filing a suit and to have acted prudently, diligently and promptly if it chose to invoke the Constitutional jurisdiction of this Court. The petitioner's inaction for fifteen years had allowed the period of three years for filing the suit for refund of the excess payment by way of customs duty and sales tax under section 32 of the Customs Act to elapse. The enormous delay in filing the Constitutional petition, which has gone unexplained as the reasons advanced therefor are without any weight and substance as already discussed above, would be a stumbling block to the maintainability of this Constitutional petition on the ground of laches. Challenge or filing objections in 1988 after 10 years of the impugned assessment would not furnish them fresh period of limitation from the date of the order by which their objections were decided on the principle that once on account of inaction, indolence, or imprudence a party had allowed the period of limitation for initiating legal proceedings to elapse or had unnecessarily delayed then a representation, claim, application, review petition filed/submitted after expiry of the period of limitation for initiating such proceedings would not be entertainable and would not revive the period of limitation for filing suit and a Constitutional petition filed by the defaulting party would suffer from laches. In support of the above proposition reliance is placed on the judgment in the cases of (i) Abdul Aziz Ayoob v. Assistant Collector of Customs, reported in PLD 1990 Karachi 378, and (ii) Mushtaq Ahmed and others v. Govt. of Pakistan and others reported in 1998 SCMR 749 = 1998 PLC (C.S.) 488. In the first cited case a Constitutional Petition filed by the petitioner therein was dismissed on the ground that he did not pursue the Departmental remedies vigilantly as a prudent man would have done as a result of which the departmental appeal and revision were decided against him. It was held by the Court that a person who acted negligently and imprudently in' pursuing the departmental remedies because of which they were decided against him not be allowed to have recourse to the Constitutional jurisdiction of this Court. In the second cited case Constitutional petition was filed on the ground than the normal remedy of appeal had become time-bared as a result of which the aggrieved party had no other option but to challenge the impugned order by way of a Constitutional petition. The Supreme Court observed that the fact that the remedy by way of appeal had become time barred would not be a ground for the aggrieved party to have recourse to the Constitutional jurisdiction of this Court and the proper course in the circumstances was to file appeal alongwith an application for condonation of the delay. In the petitioner under discussion the petitioner failed to establish that it agitated the impugned assessment before the customs authorities before 1988 or filed a suit for refund of the excess payment by way of customs duty and sales tax within the statutory period. The petitioner is not diligently pursuing the departmental remedies before the Custom Authorities and in not filing the civil suit for refund would not be entitled to invoke the Constitutional jurisdiction of this Court in view of the above pronouncements as they had not acted prudently which is one of the essential requirements for invocation of the Constitutional jurisdiction of this Court.

From the above facts and circumstances it is to be seen that the petitioners have not approached this Court with clean hands. They have suppressed material facts inasmuch as they did not clearly state as to when they challenged the levy of customs duty at the rate of 120% ad valorem and sales tax at 10% and lodged a claim for refund of excess customs duty and the entire sales tax paid by them. Even during the course of arguments Mr. Aziz A. Shaikh did not come forward with clear and specific statement as to when the petitioners had taken up the matter prior to 1988 with the respondents for agitating the above levy and claiming the refund. The petitioner also failed to file a suit for recovery of excess payment as per the observation of the Supreme Court in the case of Pfizer Laboratories Ltd. v. Federation of Pakistan and others (supra). On these grounds alone the Constitutional petition would be liable to be dismissed. The above proposition finds support from the pronouncements in the cases of (i) Manzoor Hussain and 6 others v. Zulfiqar Ali and 8, others, reported in 1983 SCMR 137; (ii) Deen Carpets Limited v. Iqbal Ghuman, I.T.O. and another, reported in PLD 1989 SC 516; and (iii) Muhammad Aman and 2 others v. Atta Muhammad and another, reported in 1982 SCMR 270.

Even if it be admitted for the sake of argument as contended by Mr. Aziz A. Shaikh that the matter was finally decided by Office Memorandum, dated 18-3-1992 of the Central Board of Revenue, the petition would still suffer from laches as. it was filed on 28-6-1993 i.e. after about 16 months of tire order for which no explanation has been given. It was submitted by Mr. Aziz A. Shaikh that a Constitutional petition filed after a delay of 16 months could not be considered to be suffering from laches and ought not to be dismissed on this ground. This submission is also not tenable in view of the pronouncements and the observation of the (Supreme Court as well as of this Court that unexplained delay in filing a Constitutional petition would be fatal depending upon the facts and circumstances of the case. In the case of Allah Nawaz Sheikh v. Punjab Appellate Tribunal, Lahore and another, reported in 1997 SCMR 573, dismissal of a Constitutional petition on the ground that the same was filed after a lapse of 13 months without furnishing any explanation for the said delay was held to be unexceptionable. In .the case of Shahbaz Khan Muhammad v. Islamic Republic of Pakistan and another, reported in 1975 SCMR the impugned order of dismissal was passed on 6-4-1970. A representation was made on 22-10-1970 against the order of dismissal followed by two other representations, dated 24-12-1971 and 10-4-1973. None of the representations produced any response and the petitioner filed a Constitutional petition in Peshawar High Court on 14-5-1973, which was dismissed on the ground of laches. The Supreme Court upheld the order of the Peshawar High Court observing that the Constitutional petition suffered from laches. In the case of Jalaluddin and another v. Settlement Commissioner, Lahore, reported in 1968 SCMR 995 the petitioner therein was found to be guilty of laches in invoking the writ jurisdiction of Lahore High Court after a delay of nearly two years. The Supreme Court further observed that the delay of nearly two years in moving the Lahore High Court was on the fact of the case tantamount to waiver or acquiescence on the part of the aggrieved party in the impugned order.

For the foregoing reasons and discussions this Constitutional petition was, found to be without any substance and also suffering from laches. By a short order 28-3-2003 it was dismissed for reasons to be recorded later. These are the reasons for the said short order.

M.B.A./P-73/KPetition dismissed.