AKHTAR ZAMAN MALGHANI, J.- Following reliefs have been claimed in the instant Constitutional petition:-- "(A) Declaring that the respondents after issuance of letter dated 8.11.2005, is bound under the law to allot 4100 acres of land in favour of petitioner, and in not doing so, their such act is totally illegal, improper, based on mala fides, as well as in excess and mis-exercise of authority vested in them.
(B) On having declared so the respondents be directed to strictly act in accordance with order dated 8.11.2005, by implementing the same in letter and spirit.
(C) Any other relief deemed fit and proper in the circumstances of the case 'may also be awarded along with the cost of petition, in the interest of justice."
2. Briefly stated, facts of the case are that predecessor-in-interest -of the petitioners instituted a suit against Deputy Commissioner, Gawadar, Board of Revenue, Baluchistan and Divisional Officer, Forest Department, Gawadar in respect of land known as "Gharagah Ankara" in the Court of Qazi, Gawadar which suit was eventually decreed by Qazi Court vide judgment and decree dated 21.4.1996. Appeal filed against said judgment and decree by the defendants was also dismissed by Majlis-e-Shoora on 30.10.1996, however, both the judgments and decrees were set aside by this Court vide judgment dated 16 4.2004 in Revision Petition No. 87/1999, against which judgment present petitioners preferred petition for leave to appeal before Hon'ble Supreme Court being No. 63-Q/2004 wherein leave was granted and same was converted into Civil Appeal being No. 1607 of 2005 which was disposed of by the Hon'ble apex Court on 18.1.2006 by following order:- "The appellants, as per Civil Miscellaneous Application No. 5890 of 2005 have decided to withdraw the main appeal only on the assurance of the respondent Government to allot 4100 acres of land to the appellants. There is no assurance before this Court from the side of the respondents.
2. In the circumstances, in view of the Civil Miscellaneous Application, Civil Appeal No. 1607 of 2005 is hereby dismissed as withdrawn with the condition that if the promised allotment is not made in favour of the appellants within a reasonable time, the instant appeal shall stand restored, on the application of the appellants."
3. According to the petitioners NAB on the direction of President of Pakistan carried out detailed enquiry and forwarded recommendations to Govt, of Baluchistan, on the basis whereof the entire record was re-examined and Chief Minister on the recommendations of Director General, Gwadar Development Authority, Minister Revenue and Secretary Law directed respondent No. 2 for allotment of 4100 acres of land in favour of petitioners with further directions that NAB, Baluchistan before handing over the allotment letter will ensure that the case is withdrawn from the Supreme Court by the petitioners and they had settled their issues with the buyers of the land. It is grievance of the petitioners that despite their approach respondents Nos. 1 and 2 are not acting upon the directions of Chief Minister and procrastinating the matter, without any just cause and reason.
4. We have heard the learned counsel for the petitioners as well as learned Additional Advocate General. Mr. Khawaja Muhammad Nadeem,- Senior Member, Board of Revenue also appeared in person, and with permission addressed the Court on factual side of the controversy.
5. Learned counsel for the petitioners vehemently contended that the decision to allot the land to the petitioners was taken in larger interest of Government, because subject- matter of the suit was land measuring 4040 acres but in pursuance of judgment of this Court, the Government illegally, and Unlawfully taken away 12617 acres 2 rods and 17 poles land existed in the name of petitioner's predecessor, which was obviously wrong, therefore; on the basis of summary the Chief Minister directed for allotment of 4100 acres land in favour of petitioners, which was perfectly justified on the basis of documents arid Board of Revenue was bound to follow the order of Chief Minister as no reasons have been shown in the comments for not implementing the order of Chief Minister.
On the other hand, the learned Additional Advocate General contended that the order of Chief Minister having been made in violation of Land Lease Policy, 2000 Baluchistan Board of Revenue was not under legal Obligation to implement the same, more so; when such- directions have been conveyed through unofficial letter as evident from the reference number starting with the words "U.O." which means unofficial. He further contended that the petitioners had already moved application before Hon'ble Supreme Court for restoration of appeal, as such; petition may not be found maintainable.
6. Learned Senior Member, Board of Revenue on the factual side contended that the suit filed by the Predecessor-in-interest of the petitioners was in respect of land measuring 4040 acre but after passing of decree he succeeded in getting transfer of State land measuring about 17000 acres with connivance of subordinate revenue staff. He further contended that even otherwise the State land could not have been mutated in favour of petitioner or their predecessor in pursuance of decree passed by Qazi Court, because no decree was passed declaring the plaintiff owner of land in dispute or directing the revenue staff to enter the land in the name of decree-holder. He further stated that under the Land Lease Policy only 36 acres land could be leased out to any person.
7. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the documents- available on record. It would not be irrelevant to mention here that the petitioners' counsel filed an application under Section 151, C.P.C, in order to bring certain facts on record when judgment was already reserved, however; after having heard the learned counsel it. Was decided that the said facts Would be taken into consideration at the time of dictating judgment. The facts narrated in the said application are as under:- "(a) The First Settlement in Gawadar took place in 5th September, 1996 and in that Settlement an area of 1241 rods 14 poles i.e. 3167 acres was entered in the record-of-rights in the name of predecessor-in-interest of petitioners namely Mir Khudai Dad Khan.
(b) The land measuring 9500 acres (9n fact is 9450 wrongly incorporated as 9500 acres) was entered in the name of Government of ! Baluchistan in the First Settlement on 20.10.1996.
(c) So the land measuring 3167 was entered in the name of petitioners' predecessor first and land measuring 9500 acres was entered in the name of Government, subsequently.
(d) The judgment and decree was passed by learned Qazi, Gawadar on 21 A. 1996, which stated that the petitioner is the owner of land in occupation of the Forest Department and the land where marks were made for the Deep' Sea Port, which was soon, appealed before the learned Majlis-e- Shoora, who dismissed the same vide judgment dated 30.10.1996 and . Therefore, on the basis of decree so passed by the learned Qazi, land measuring 9500 acres (in fact is 9450 acres) was transferred in the name of predecessor-in-interest .Of petitioners. Meaning thereby the land measuring 3167 acres was neither the subject-matter- of suit nor ever was under challenge fore any Court of law.
(e) After the judgment of Hon'ble High Court dated 16.4.2004, instead of cancelling 9500 acres of land from the name of petitioner, the respondents cancelled the entire land.
(f) It was therefore, that in view of such situation, when the matter was assailed before the Hon'ble Supreme Court, a high level meeting was held on 22.12.2004, in NAB (B) in which amongst others, Governor, Baluchistan, Chairman, NAB Pakistan, Chief Minister, Baluchistan, D.G. NAB and Chief Secretary participated and accordingly summary was moved and the Chief Minister considering the same, directed for allotment of 4100 acres of land in favour of petitioners, being compensation as against 9500 acres, subject to withdrawal of petition from the Hon'ble Supreme Court and not agitating any right more than 4100 acres, which condition of the Government was fulfilled. Thus it had absolutely no concern with the lawful legally mutated property of petitioner measuring 3167 acres, carried out in the first settlement, much before the execution of the decree of Qazi, Gawadar and mutating of 9500 acres of land in the name of Government of Baluchistan."
It is evident from the contents of para 'a' that the same have not been correctly incorporated.
According to petitioners' own showing and supported by Khatooni appended with the application during the settlement carried out in the year 1996 an area of 1241 rods 14 poles was entered In the name of predecessor-in-interest which is equal to 310 acres 1 rod 14 pole and not 3167 acres as mentioned in that para, as one acre is equal to four rods.
8. Coming to the merits of the case we may observe that Constitutional jurisdiction is meant to foster justice and could not be used to perpetuate wrong, even if action of administration is illegal.
In order to see as to whether Board of Revenue was bound, to implement the directions of Chief Minister, we have to study the relevant law. It may be noted that in order to provide mechanism for allotment of State land Government has issued Notification No. 490-8/86-Rev., dated 1st December, .2000 under subsection (2) of Section 10 of the Colonization of Government Lands Act, 1912, made applicable to the Province of Baluchistan vide Notification No. 3369/67-198-CLI, dated 7th February, 1998. Clause 2 of the policy/notification deals with eligibility of the persons entitled, to lease hold rights which reads as understate land will be allotted to a person or group of persons (having common pursuit and background) through Cooperative Societies by way of lease in the following order of preference:-
(a) The order of preference based on permanent residence of the applicant shall be, as follows:-
(i) Resident of the village or revenue estate where the land is situated; '
(ii) resident of the adjoining village or revenue estate;
(iii) resident of a village or revenue- estate in the same district where the land is situated.
(b) The order of preference based on previous land holding is as follows:-
(i) Landless heirs or residents having no interest in a land, commercial or industrial plant in the area;
(ii) : Heirs or residents in possession of land or interest thereon (through expected inheritance/otherwise), short of 16 acres irrigated and 32 acres of un-irrigated land, who will be provided State land just to supplement the aforesaid ceiling. Similarly such residents who do not own or have no interest in any commercial or residential or industrial plant will be provided State land as per ceiling prescribed for such categories hereinafter."
Whereas; Clause 3 deals with scope of lease in following words;-- "(1) Rural Areas: Fifty percent State land in each revenue estate/Tehsil will be kept reserved for future utilization and the remaining fifty percent may be allotted/leased out to eligible categories, for public purpose and to landless persons under the. Policy in the following proportions:-
(a) For Agricultural purposes a total of 25% of the allot table State land (at least 16 acres irrigated or 32 acres unirrigated land) may be leased out in the name of duly registered Cooperative Societies comprising membership of unemployed graduates.
(b) For farming up to ten percent of State land may be allotted for the following purposes in favour of duly registered societies comprising memberships of unemployed graduates.
(i) for poultry farming, at least one and half acre of State land may be leased out subject to feasibility studies/recommendations of the Livestock Department.
(i) For dairy farming, at least ten acres of land and may be leased out for housing animals/milk production subject to feasibility studies by Livestock Department.
(ii) For Fish Farming at least 5 acres of land may be allotted subject of feasibility studies/recommendations by the Fisheries Department..
(a) For establishment of Cottage Industries/agro- based processing plants, State land up to i.e percent at the rate of 10 acres may be leased in the name of duly registered Cooperative Societies comprising memberships- of unemployed youths subject to feasibility studies/recommendations of the Small Industries Department.
(b) Agriculture land at the prescribed ceiling to the extent of 15% of State land may be allotted to the duly registered Cooperative Societies comprising membership of other landless/unemployed persons.
(c) Remaining 45% of State land in the rural areas will be leased out for - public purposes or through auction or at the market rate to individuals/other categories, as usual."
Mode of lease have been provided in Clause 5 of the notification, sub-clause (1) of which contemplates that the State land will be leased out to the unemployed youth/landless persons falling in categories under Clause 3(1), (a), (b), (c) and (d) for a period of thirty years initially subject to extension on performance basis, for which no cost will be recovered from such categories for the initial period of i.e years, whereafter the performance in respect of utilization of land will be evaluated by the authority mentioned in sub-clause 1(a), (b) and '(c). Similarly, under sub-clause (2) of Clause 5 rate of lease money per year will )e determined by the committee keeping in view market rules/performance. Under Clause 9 an allottee who has developed the land, shall be entitled to the grant of >whereship/property rights of the leased land on payment of nominal price to be fixed by the Government after the expiry )f extended lease period. Letter dated 8th November, 2005 directing Board of Revenue to allot.4100 acres land in favour )f petitioners appears to have been issued by bypassing the above scheme where under no order of transferring the ownership rights could be made except under Clause 9, that oo; in favour of lease holders.
Therefore, in our considered view respondent No. 2 was under no legal obligation to act upon the directions communicated in the said unofficial s letter. The Hon'ble apex Court in Constitutional Petitions Jos. 6 to 9 of 1994, 1-Q of iQ95, 23 to 26 of 1995 titled Nawabzada Jahangir Shah and others Vs. Province of Baluchistan and others decided on 2nd November, 1998 observed as under:-- "Prima facie the above order of transferring the ownership rights could not have been made under the above Scheme. The Chief Minister had no power to grant ownership by bypassing the above Scheme', under which the ban on allotment of State land wap lifted."
It may be noted that in the above-referred cases also and was allotted on the direction of Chief Minister in violation of Land Lease Policy.
For the foregoing reasons, we find no merits in the instant petition, which is dismissed accordingly.