Acquiescence

  1. As a result of mutual consent and agreement between the Committee on the one hand and the allottees on the other hand, the original site plan was changed and allotments were made — Appellant duly participated in the proceedings of subsequent allotments having acquiesced in the matter cannot come forward with a volta face to challenge the subsequent allotments — Acquiescence of a party in a particular proceeding is always fatal for that party to seek constitutional remedy. Ghulam Mustafa v. Azad Government & 2 others 1996 SCR 7 (C) AIR 1953 Nagpur 81 Para No. 21, AIR 1957 Madhya Pardesh 60 para 21, PLD 1973 SC 144 relied
  2. Acquiescence even by conduct has been held to be fatal for invoking the constitutional jurisdiction. In the instant case the appellant is not only precluded by his conduct to seek the constitutional remedy but he practically participated in the subsequent allotment proceedings and with his consent and agreement arrived at between allottees and the Members of Allotment Committee, the rescheduling in the site plan was done and allotments were made. (D) Ghulam Mustafa v. Azad Government & 2 others 1996 SCR 7
  3. If a subordinate Court fails to give finding on a point the aggrieved party must make positive averments in that regard in the memorandum of appeal and support the same by filing an affidavit; otherwise, the objection would be deemed to have been waived. District Council Mirpur  v. M/s Flora Consumers Products (Pvt) Ltd 1996 SCR 367 (A)
  4. Meaning of word ‘acquiescence’ — Black’s Law Dictionary — The principle of acquiescence applicable if the appellant appeared in examination and filed writ after failing to get appointment but not if he had already filed the writ petition. Umar Hayat v. Azad Govt. 1999 SCR 243 (C)
  5. In advertisement one of the terms and conditions was that if suitable candidates from Muzaffarabad District were not available, the vacancy may be filled in by any suitable candidates from other Districts — Respondent duly participated in the test and interview after going through the terms and conditions of advertisement published by the Public Service Commission and surrendered himself to its jurisdiction — As respondent could not qualify the test, he was not an aggrieved person to challenge the selection of appellant by filing a writ petition. Suleman Ahmed  v. Tanveer Ahmed Mir and 3 others 2001 SCR 282 (B)
  6. The petitioner participated in the test and interview — He failed to raise any objection about the presence of the expert — At this belated stage on the principle of acquiescence he cannot be allowed to challenge his presence as a member of Selection Board. Engineer M. Khalid v. The University of AJ&K and 8 others 2004 SCR 467 (C) 1998 SCR 243, 2001 SCR 282, 2000 SCR 97 ref.
  7. The question of waiver is to be seen in light of facts of a particular case.  Muhammad Razzaq & another  v. Nazir Hussain & 4 others 2005 SCR 50 (B)
  8. Waiver is a question of fact which has to be proved by cogent evidence — It cannot be assumed by inferences. Nazar Ahmed & 8 others  v. Fazal Hussain & 11 others 2005 SCR 75 (A)
  9. Waiver has to be proved by evidence or by conduct of the party clearly suggesting his voluntary participation in execution of sale-deed and relinquishment of his right due to his conduct — Superior Courts of the country have not accepted even presence of pre-emptor at the time of sale to be enough to draw an inference of acquiescence to the sale or relinquishment of his pre-emptive right. Nazar Ahmed & 8 others  v. Fazal Hussain & 11 others 2005 SCR 75 (B) PLJ 1982 SC 357, 1992 SCMR 786 rel.
  10. Petitioners have participated and duly assisted the Commission of Inquiry and they have all along been with the Commission during inquiry — They challenged the notification of appointment of Commission of Inquiry after the report was submitted by the Commission and when they found it against them — Held: A person who duly participated in an inquiry and acquiesced to the jurisdiction, is estopped from calling in question the proceedings and the result thereof. Sardar Zaheer Ahmed Khan and another v Azad Govt. and 4 others 2005 SCR 89 (B)
  11. Change of date for examination — Effect of — Test was conducted on 7th instead of 9th October, 2006 — It was done because no building was available at Muzaffarabad — No building at Islamabad was also available for 9th October — Test was conducted on 7th — All the candidates were informed accordingly — Appellant also participated — No objection was raised — When appellant failed then he raised objection — Held: He cannot raise this objection at this stage. Electrical Engineer Syed Attezazul Hasan v. Azad Govt. & 15 others 2008 SCR 67 (A)
  12. It is nowhere on the record that the petitioner in the High Court was in knowledge of fact that the appellant is overage and he is not qualified to apply for the post — Held: The principle of acquiescence/waiver is not attracted — Argument repelled.  Janat Hussain v.  Saqib Farooq & 4 others 2009 SCR 599 (C)
  13. Appellant and respondent No.1 were appointed as Assistant Linemen on 31.3.1987 through a single order — This order was from the day first in the knowledge of appellant but he did not challenge this order at any stage which has attained finality — Held: The same cannot be disputed at this stage. Sheikh Javed Iqbal v. M. Basher & 5 others 2010 SCR 208 (A) 1996 SCR 171 rel.
  14. The appointment order does not mention any amount of salary — Document relied and brought on record by the appellant himself proves that at the time of his appointment, salary package was Rs.80,000/- per month — The conduct of the appellant is self speaking proof of this fact  that he has accepted  the conditions by placing on record of this Court annexures  ‘‘PN/1’’ to ‘‘PN/3’’ his salary bills @ Rs.80,000/- per month — It is also stated in the replication that he has been paid monthly salary as per agreed contract — Held: In presence of the admission of the appellant and his conduct, there remains no legal dispute regarding amount of salary. Kh. Manzoor Qadir v. Azad Govt. & 5 others 2010 SCR 215 (A)
  15. In orders a condition has been categorically imposed that the vacancies will be advertised and permanent induction will be made by the concerned Selection Committees according to selection on merit — Held: The petitioners have accepted the conditions imposed in these orders, therefore, now they cannot turn round and take a different stand. Razeem Sheikh & 6 others v. Azad Govt. & 3 others 2010 SCR 264 (A)
  16. Concept — Waiver commonly understood, was an intentional relinquishment of a known right — Waiver could consist either of positive act or relinquishment or a conduct such as would warrant an inference of relinquishment of right. M. Ejaz Khan v. Sikandar Shah. 2012 SCR 318 (B)
  17. Respondent-plaintiff filed a suit for recovery of damages to the tune of Rs.50,000,00/- on the ground that due to the conduct of the appellant-defendants he suffered mental agony as in spite of the payment of whole price, the possession of the plot was not delivered to him. The suit was resisted by the appellants-defendants — the trial Court decreed the suit in favour of the respondent-plaintiff to the tune of Rs.1,00,000/- as compensation of mental agony. Both the parties feeling aggrieved filed separate appeals before the High Court. The High Court after necessary proceedings while accepting the appeal filed by the respondent-plaintiff, enhanced the amount of compensation from Rs.1,00,000/- to Rs.5,00,000/-, whereas the other appeal filed by the appellant-defendant—was dismissed. Both the parties again feeling dissatisfied filed appeals before this Court. The respondent-plaintiff filed appeal for enhancement of compensation from Rs.5,00,000/- to Rs.50,00,000/ — Held: we have gone through the contents of application moved by the respondent-plaintiff for allotment of the plot — on the back page of the application there is an undertaking/ affidavit which has been duly signed by the allottee, in which he has categorically admitted the term that “He is aware that possession of plot shall be delivered on the completion of development work” — as one of grounds for seeking the decree for damages that in spite of the fact the payment had been made, possession was not delivered to the allottee seems to ill-founded, in the presence of this undertaking which is not denied. Mirpur Development Authority & 2 others v. Mehmood Akram & 11 others 2014 SCR 995 (A)
  18. Tenders were invited for the projects in question, i.e. Greater Water Supply Schemes, district Neelum and district Hattian Bala. After conducting the necessary proceedings, the work was allotted to the appellant Company. Respondent No.1 moved an application to the Chief Secretary — the copy of the same was also sent to the Secretary Physical Planning and Housing, for cancellation of the tendering process, on the ground that the same has been made illegally against the prescribed procedure and the relevant rules — on the aforesaid application, the Secretary Physical Planning and Housing constituted a committee to examine the matter — the said committee submitted a tentative report — while observing that the tendering process has been made in a transparent manner according to law and the rules — the Chief Secretary also constituted a committee — to scrutinize the tendering process of five water supply schemes of Public Health Engineering in which the projects in dispute were also included. Contention of the appellants that the High Court relied upon the report of the second inquiry committee without adhering to the fact that the first committee — had already held that the tendering process was carried out in accordance with the relevant rules and it was improper to constitute second committee headed by another Chief Engineer — Held: The appellant-company has not challenged the constitution of the second committee at the relevant time at any forum, even during the inquiry of the said committee they remained mum, when the committee submitted its report against the interest of the appellant-company, then they raised such objections which have no value in the eye of law. Sardar Ilyas Alam v. Meer Muhammad Ashraf & 18 others 2016 SCR 1642 (A)
  19. —after accepting the condition that the authority is competent even to reject the fair tendering process without assigning reason, the appellant herein cannot come with volta face and say that the respondents were not legally competent to cancel the recommendations made in favour of the appellant. M/S Ideal Engineering v. Azad Government & others 2017 SCR 1100 (E) PLJ 1983 SC 230 rel.
  20. —writ —maintainability—basic notification i.e 31.5.2012 which imposes a condition on the failed students that they will be allowed to attend next class till supplementary examination, however, if they failed to pass first professional MBBS examination in supplementary examination will be relegated to previous class and not be entitled to continue in the next class has not been challenged and  only notification dated 15.9.2015 is challenged—without challenging the notification/letter dated 31.5.2012, requisite relief cannot be granted— writ not maintainable. Saima Noor & others v. Mohi-ud-Din Islamic University & others 2017 SCR 25 (C)
  21. –The respondent participated in the denovo proceedings and has not challenged the same at any appropriate forum, therefore, he cannot come with the Volta face and say that the denovo proceedings taken against him are mala fide and illegal—if a party who has acquiesced into passing of the impugned order cannot be permitted and resile from the same. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (U) PLJ 1991 SC 454 rel.
  22. — conduct of appellants—took plea that affidavits may be considered for resolving dispute—later on, cannot take u-turn—estopped by their own conduct—the principle of acquiescence fully applicable. Ch. Muhammad Shoukat & others v. Custodian of Evacuee Property & others 2017 SCR 1388 (H) 1993 SCR 92 rel.       
  23. — The respondent after accepting the conditions of the tender notice has participated in the tendering process. Therefore, after being unsuccessful, he cannot challenge the same on account of acquiescence and estoppels. Chief Engineer Building/Public Health v. Sadder Ilyas Alam 2017 SCR 1609 (A)
  24. —Acquiescence—and grant of discretionary relief—Held: After unconditional participation in the process, discretionary relief cannot be granted to a petitioner. Chief Engineer Building/Public Health v. Sadder Ilyas Alam 2017 SCR 1609 (B)  PLJ 1983 SC 230 & 2001 SCR 282, rel.
  25. — Once a person while accepting the terms and conditions joins a position, cannot turn around later on—under law nobody can blow hot and cold in one breath. Ashfaq Ahmed & another Versus Finance Department & 7 others 2021 SCR 248 (A & B)
  26. — doctrine of — acquiescence is grounded upon a conduct that if a person sighted another person about to commit an act infringing upon his rights who might otherwise have abstained from it to believe that he assents to its being committed, he cannot afterwards be heard to complain of that act — AKLASC & others vs Misdaq Hussain Kayani & others 2024 SCR 23 (E&F)
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