1. ' MUSHIR ALAM, J.---Petitioners have impugned the order dated 22-1-2002, passed by Member (Judicial) Board of Revenue, in appeal and order dated 22-4-2004, in Review Petition filed by the Petitioners.
2. ' Brief facts as gathered from the pleadings appear to be, the petitioners claim to be the Haris and residents of Deh Ahmed Rajo-5, Taluka Golarchi District Badin. It is the case of the petitioners that land in the Deh of their abode, was available for disposal. They being entitled thereto, were granted such land by the then Chief Minister of Sindh as communicated by the Member Board of Revenue through letter dated 3-9-1991. It however, seems that, subsequently, move for cancellation of the grant was made by the Additional Secretary to Chief Minister; consequently it was directed that land may be allotted in open Katcheri vide order dated 6-10-1991. It is the case of the petitioners that Ijazatnama was executed in their favour, therefore they challenged the orders of cancellation of disposal of the land in open Katcheri through Suit No,77 of 1992. It is the case of the petitioners that the plaint was rejected and so also the appeal was dismissed on 12-12-1993. It further seems that the grant made in favour of the petitioners was cancelled vide Notification dated 29-5-1994, which was challenged through C.P. No,D-432/1994. It seems that, such cancellation Notification was withdrawn on 18-2-1997, therefore, petition was disposed off as infructuous on 2-4-1998. It seems that with the change of the Government, the cancellation Notification was withdrawn. However, this time the Divisional Commissioner was authorized to pass fresh orders of cancellation or restoration after hearing the parties under the Land Revenue Act. It appears that, Revenue Officer Kotri Barrage, made a Reference dated 28-9-1997, to the Commissioner Hyderabad, to examine the legality of grant allegedly made on political consideration. The Commissioner maintained the grant and disallowed the Reference of the Revenue Officer vide order dated 16-5-1998. It seems that the private respondents challenged the order in appeal under section 161 of the Sindh Land Revenue Act. Appeal was allowed on 22-1-2002 on the ground that, impugned grants were made in deviation of Land Grant Policy as the petitioners are holding double allotment. Review was also dismissed on 22-4-2003.
3. ' It was contended by the learned counsel for the petitioners that, no appeal lies against the order passed in exercise of suo motu revisional jurisdiction and the learned Member (B.O.R.) failed to advert to such objection. It was urged that under the Amendment Ordinance, 1980, right of appeal under section 164 in matter of suo motu exercise of power is not maintainable. In support of his contention reliance was placed on Government of the Punjab. v. Hudabia Textiles Mills, Faisalabad 2001 SCMR 209. It was contended by learned counsel that remedy of the private respondent was available by way of suit or writ petition against the order of Commissioner upholding the grant dated 16-5-1998. According to the learned counsel for the petitioners, they are qualified to be granted such land under the Land Grant Policy for the year 1989. It was further urged that, the respondents are neither qualified nor entitled to the grant of land.
4. ' Learned counsel for the respondent Mr. Talpur urged that, petition is not maintainable. It was urged that the petitioners are beneficiary of political favoritism. He has drawn my attention to page 39 of the file, it is an application made by as many as 155 persons addressed to the then Chief Minister Sindh for the grant of land on Harap basis in relaxation of Policy 1989-90. It was urged that the application was signed by only one person. It appears that, on the application Secretary to the Government of Sindh, Land Utilization Department, issued directive dated 10-2-1992 to the Revenue Officer that, the directive of Chief Minister of Sindh dated 3-9-1991,be complied with, for the grant of land in favour of Noor Muhammad Jatt and 156 others in Deh Ahmed Rajo-5 Taluka Golarachi District Badin on Harap conditions, for agricultural purposes on permanent tenure at the rate on which their offer have already been recorded, which may be accepted as laid down in Policy notified on 4-12-1989. According to the learned counsel by one stroke of pen over three thousand acres of land was distributed as it was a personal property. It was further urged that when the Government was changed, such facts came to the notice of the authorities, the grant was cancelled on 29-5-1992. Learned counsel for the respondents further urged that, the private respondents joined all the proceedings filed by the petitioners but the Commissioner passed the orders dated 28-8-1992 without joining or any notice to the respondents. According to the learned counsel, it was order in original and not in exercise of suo motu jurisdiction, therefore, appealable before Member Board of Revenue. He placed reliance on judgment dated 30-5-1992 recorded in the case of Ali Muhammad and others v. Muhammad Bachal and others C.P. No,154 of 1989.
5. According to the learned counsel, the Additional Commissioner failed to take into consideration that double allotment has been made in favour of petitioners. It was urged that, the appellate authority minutely examined the record and noted that the petitioners' case is of double allotment, therefore, they do not qualify for the grant of land in accordance with relevant policy. According to learned counsel for private respondents, land was to be granted in accordance with policy. As per policy, the grant could not have been made for a period more than 5 years, whereas, in the instant case land has been permanently granted which was rightly cancelled. It was next urged by the learned counsel for the respondent that, the petitioners cannot be allowed to retain a political bribe or ill-gotten gain. He supported the impugned orders.
6. ' According to Mr. Masood A. Noorani, the learned Additional Advocate General, Sindh, the order passed by the learned Additional Commissioner could be treated as order in original and, therefore, in his view also the appeal was competently filed before Member Board of Revenue.
7. ' We have heard the arguments and perusal the record.
8. ' There is no dispute that the subject lands were granted to the petitioners on the directions of the then Chief Minister by a single stroke of pen in relaxation of the ban and conditions of statement of policy.
9. ' We have examined the orders impugned and found that, learned Member Board of Revenue at typed page 6 of the order in Review has meticulously and minutely examined the right and entitlement of the petitioners. He has given detail of the land granted to the petitioners in Deh Ahmed Rajo-5 Taluka Golarchi District Badin as well in Deh Oranga of Taluka Jati District Thatta.
10. The conclusion drawn in order in Review appears at typed page 16 is as follows:-- "11. A careful study of the record reveals that the allotments/grants made to the applicants were illegal for the following main reasons:--
(i) The grants made to them were without bringing the land in schedule, without holding Katchary and without determining their eligibility and priority which violated conditions Nos. 17(1), 7(3), 9(4), 9(1) read with 5 of the Land Grant Policy 1989.
(ii) Most of them were granted land in two different districts viz. Badin and Thatta which is violative of condition Nos.2(h) & 5 of the Land Grant Policy 1989."
(iii) Most of them were granted the land exceeding sixteen acres which is violative of condition No,6 of the Land grant Policy 1989."
11. ' Learned Member had meticulously examined the case as urged by the learned counsel for the petitioner before us today and in view of his conclusion dismissed the review application.
12. Without going into the merits of the case in depth, suffice to say that the petitioners were favoured by the then Chief Minister for extraneous consideration. Large number of persons were obliged to gain political favour and apparently to consolidate his political constituency. Learned counsel for the petitioners was not able to demonstrate that, the conclusion drawn by the Member Board of Revenue that the petitioners have been granted land in more than one Deh are not eligible or qualified in terms of Land Grant Policy applicable in instant case.
13. ' In a case reported as Abdul Haq v. Province of Sindh (PLD 2000 Karachi 224 a Division Bench of this Court confronted with some what similar controversy in the wake of exercise of power of the Chief Minister in para. 23 observed as follows:-- "23. In a Constitutional setup all the functionaries derive power and authority from the Constitution itself or from the law as may be framed by the Legislature. Obedience to the Constitution and law is the inviolable obligation of every citizen, higher the authority more the responsibility for such obedience and observance. Constitutional functionaries like Chief Minister take oath and swear allegiance to discharge their respective duties and to perform functions honestly to the best of their ability faithfully in accordance with the Constitution and the law in the interest, well being and prosperity of the country. Any failure, disobedience in the due observance and performance of such `inviolable obligation' may attract judicial superintendence, enforcement and correction by way of appropriate writ in Courts of law."
14. ' Such view was upheld in the case reported as Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 while upholding the above referred case. At page 912 it was held that where the lease could not have been granted for more than 5 years, Chief Minister had no authority to grant extension of 30 years contrary to the relevant law.
15. ' In the instant case also, it appears that, as per Schedule annexure `A' to the Land Grant Policy the land could have been granted for 5 years on Harap conditions such Schedule is annexure 'A' to the petition at page 31, whereas, in the instant case admittedly the grant was made on permanent basis on the directions of the then Chief Minister. It is settled principle of law that writ jurisdiction could be invoked in aid of justice and not to perpetuate injustice or to retain ill-gotten gain. In a case reported as Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 apex Court observed at page 258 as follows:-- "An order in the nature of writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
16. ' It was further held at page 259 as follows:-- "In the same manner, in the instant cases, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in face done, that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction."
17. ' Therefore, contention of Mr. Mullani that the order passed by the Additional Commissioner dated 16-5-1998 restoring the grant could not have been challenged in appeal before Member Board of Revenue, in the light of the decision of the apex Court, cannot be sustained. The Petitioner was not able to show that the grant was made strictly in accordance with Land Grant Policy dated 4-12- 1989. It is settled that ill-gotten gain cannot be allowed to be retained and even Court may decline to interfere in exercise of writ jurisdiction. Such proposition is also supported by Chief Settlement Commissioner v. Muhammad Fazil Khan PLD 1975 SC 331 and the case of Abdul Haq Indhar refered to above.
18. ' In this view of the matter the petition is dismissed.