MUHAMMAD MUZAMMAL. KHAN, J. --- This judgment proposes to decide three Constitutional petitions (Writ Petitions Nos. 4760, 5221 and 5222 of 2007), as all these petitions raise similar questions of law/facts; require similar determination and are directed against the same set of the respondents. _ All the writ petitioners assailed cancellation of their respective plots by the respondents.
2. Succinctly relevant facts, as deciphered from the record, are that Commercial Plot No.1(C), Phase-ill, Block-XX, (Sector-A) L.C.C.H.S. (Now DHA) measuring 8 marlas was in the name of Ex- Brigadier Muhammad lbraheem Khalid who is writ petitioner in Writ Petition No. 5221 of 2007; commercial plot No. 329-Z, Phase-Ill, L.C.C.H.S. (now DHA) measuring 8 marlas, was in the name of Mrs. Nazima Khalid wife of the above-referred Muhammad Ibraheem Khalid, by way of sponsorship and she has filed Writ Petition No 5222/2007 and Commercial plot No. 44(C), Phase-III, Block-XX, L.C.C.H.S. (Now DHA) Lahore Cantt., measuring 8 marlas was in the name of Lt. Col. (Retired) .Muhammad Aslam, writ petitioner in Writ Petition No. 4760 of 2007. Besides these plots, Ex-Brigadier Muhammad lbraheem Khalid was posted as Additional C.C. Engineers, 4 corps, Lahore and he by virtue of this posting, was appointed as Vice-Chairman (VCM) of Lahore Cantt. Cooperative Housing Society (LOCHS), Lahore Cantt. On 16.1.1994. Lt. Col. (Retired) Muhammad Aslam was then a serving Lt. Colonel and performed the functions of Director (Land & Litigation) of the said Society.
Ex-Brigadier Muhammad lbraheem Khalid after about 1 months of his service as VCM, manoeuvred a note from the Secretary of the Society that he had contributed in-valuable contribution to the society and had greatly benefited if money wise, besides enhancing its prestige and he was accordingly recommended allotment of two kanals residential plot and one commercial plot. Ex- Brigadier Muhammad Ibraheem Khalid himself endorsed the recommendations of the-Secretary, resulting in approval on 27.12.1994 and in this manner, the above-noted two plots were allotted in the name of Mrs. Nasima Khalid wife of Ex-Brigadier Muhammad Ibraheem Khalid. These plots were not only sponsored by the Ex-Brigadier Muhammad Ibraheem Khalid as VCM but he also granted the approval, required. He also secured commercial plot of Block XX-1 measuring 8 marlas in Phase-III of the said Society, as service benefit.
3. Ex-Brigadier Muhammad Ibraheem Khalid earlier to taking over of charge as VCM of the L.C.C.H.S. Society, was posted as CC Engineers, 5- Corps, Karachi and during this charge he in the year 1993 processed the case for grant of 200 Acres of land of Malir River Bed in favour of Headquarters 5 Corps. NOC from K.D.A. And approval for lease in favour of 5 corps was granted on 5.9.1993 but final allotment letter of the land was got issued by the Ex-Brigadier Muhammad Ibraheem. Khalid in his own name instead of getting it in the name of Headquarters 5 Corps. He also got allotted plot No. 299-D, measuring 1000 square yards Phase-VIII, D.H.A., Karachi, which was exchanged by him with plot No. 92 of the same size, in Khiaban-e-Hillal, Phase-VI of D.H.A., Karachi, besides getting an extra-residential plot No. 81-3 moasuring 1000 square yards in Khiaban-e-Badban, Phase-VII and sold the same for a valuable consideration. He also got allotted plot measuring 500 square yards, Morgha Scheme Phase-II, Rawalpindi. It is pertinent to mention here that petitioners have already sold different plots in their names and only three commercial plots, one plot in the name of each of them, as detailed in para No. 2 supra, are subject of this judgment.
This Ex-Brigadier while holding the office of VCM LCCHS, Lahore Cantt. Also indulged in sale/purchase of different lands through one Allah Ditta, property dealer. The purchase from different land owners was shown at the rate of Rs. 1,75,000/- per kanal and was then sold to the (LCCHS) Society. Price of the land so sold to the society was also paid to Allah Ditta and allottment of plots in the developed sectors equivalent to 1/5th land were also manoeuvred to be exempted in his name. The plots so allotted were sold by Allah Ditta and the sale proceeds were shared by Allah Ditta, Ex-Brigadier Muhammad Ibraheem Khalid and Lt. Col. (Retired) Muhammad Aslam and a major junk of the sale price was received by the above-referred Ex-Brigadier Muhammad Ibraheem Khalid.
4. Petitioners claim that they applied to LCCHS for allotment of commercial plots and they were informed that the above-named plots fell in their names in open draw and they have already deposited one or two of the instalments, thereof. Their claim was that the plots subject-matter of the writ petitions fell to their fortune in open ballot and unilateral, cancellation of those, without notice/their hearing, was not only illegal but was also violative of the principles of natural justice. Record revealed that conduct of the petitioners was taken note by the Military Intelligence Directorate and on its information, the competent authority constituted a Court of inquiry under the Pakistan Army Act to inquire into their conduct. After a detailed inquiry and their hearing. Ex-Brigadier Muhammad lbraheem Khalid and Lt. Col. (Retired)
Muhammad Aslam were found guilty of misconduct . The Chief of the Army Staff after fulfilling all the codal formalities did not order for trial by FGCM and instead, recommended dismissal of Ex- Brigadier Muhammad lbraheem Khalid from service; followed by approval of the FederalLL Government, in terms of Section 16 of the Pakistan Army Act, 1952. The COAS ordered that all the plots/lands under any government and army related schemes presently held by-the officer or allotted to his wife be cancelled and his membership of Army Housing Scheme should also be rescinded. Displeasure was awarded by the Chief of the Army Staff to Lt. Col. (Retired) Muhammad Aslam and plots in his name in LCCHS were ordered to be cancelled, having been earned through misconduct/misuse of office and duties. He was prematurely ordered to be retired from service by the Federal Government. This was done through orders dated 17.6.1996 and 4.11.1996. After a prolonged litigation, Brigadier Fazal Nawaz Khan, Administrator, Defence Housing Authority Lahore, vide this detailed order dated 27.3.2007 dismissed the appeals filed before him by LCCHS (Now DHA) and consequently the orders cancelling the three plots in the names of the three writ petitioners were maintained, necessitating filing of the titled three Constitutional petitions, with the relief noted above. Respondents in response, to notice by this Court have appeared and were represented through their counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners have attacked the order dated 27.3.2007 by the Administrator, D.H.A Lahore, and without challenging it, have prayed that cancellation of their plots may be declared to be illegal, void, excess of jurisdiction, misconceived, without lawful authority and of no legal effect.
Order by the Administrator which is under attack, clearly referred to the cancellation of plots from the names of Ex-Brigadier Muhammad Ibraheem Khalid and his wife through letter dated 17.6.1996 and cancellation of plots in the name of Lt. Cot. (Retired) Muhammad Aslam through letter dated 4.11.1996. Relevant portion of the order of the Administrator in its paragraph 8, reads as under:--- "On a reference from the General Headquarters Adjutant-General's Branch.. Personnel 'Service's Directorate, Ministry of Defence, Government of Pakistan, issued formal Notification of dismissal from service of Brigadier Muhammad Ibraheem Khalid. The cancellation of the two plots in the name of Brigadier Muhammad Ibraheem Khalid as well as those in the name of his wife was formally communicated by the General Headquarters AG's Branch (PS Dte.), Rawalpindi, through a letter dated 7.6.1996. The cancellation of the plots as afore- mentioned was then communicated to ExBripdier Muhammad Ibraheem Khalid and his wife through letter dated 26.6.1996 addressed by the Secretary, LCCHS. 1 he General Headquarter AG's Branch (PS Dte.), Rawalpindi, through another letter dated 21.8.1996 cancelled the plot of Lt. Col. (Retired) Muhammad Aslam which was then communicated to him through letter dated 2.9.1996 by the LCCHS."
Undisputedly; orders contained in letter dated 17.6.1996 communicated on 26.6.1996 and letter dated and letter dated 21.8.1996 communicated on 2.9.1996 canceling the plots of the petitioners are intact till today and indirect challenge to those, after lapse of a period of about 12 years is neither permissible nor lawful. All these petitions suffer from inordinate/un-explained (aches and at this juncture, those orders/letters cannot be adjudged because; those have already attained finality and have been acted upon. Petitioners are also estopped by their conduct to put any challenge to those orders, which were passed and conveyed to them a decade back. Besides the fact that all the petitions in hand are bad at law, on account of (aches, those are, also barred by Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973. This bar though was not absolute yet no case for interference by this Court in Constitutional jurisdiction based on lack of jurisdiction; excess of jurisdiction or malice on the part of the competent authority was urged or made out from the record. It goes without saying that both the writ petitioners namely Ex-Brigadier Muhammad Ibraheem Khalid and Lt. Col. (Retired) Muhammad Aslam apparently acted in excess of their authority while discharging their duties who were regulated by the Pakistan Army Act,_ 1952 as well as Pakistan Army Rules, 1954/Army Regulations, 1960. Lt. Col. (Retired) Muhammad Aslam at that time was President of the. Ballot Committee whereas Ex-Brigadier Muhammad Ibraheem Khalid was its over all Incharge,. As is apparent from ,the Ballot Proceedings of Commercial plots and they. In-connivance with each other. Managed the plots in .Their own names by misuse of authority. They were punished and were dismissed/prematurely retired under the Pakistan Army Act, 1952, Rules/Regulations framed thereunder and the disputed plots were ordered to be cancelled.. These orders have simply been implemented by the D.H.A. In the given circumstances of the case. Constitutional jurisdiction of this Court stands ousted by virtue of clause 3 of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this behalf, we can conveniently rely on the judgments in the cases of Ex-Lt. Col. Anwar Aziz (PA-7123) v. Federation of Pakistan (PLD 2001 SC 549), lftikhar Ahmad v. Federal Government, Ministry of Defence, (2001 YLR 2679) and Hawaldar Mian Ramzan v. Federal Government, Ministry of Defence (2005 PLC (CS) 64).
6. A Full Bench of this Court had earlier opined in a reported case titled, "TAHMAS v. The Central Government of Pakistan (PLD 1957 Lahore 871) that policy of the law in respect of Defence Services is that question relating to their services may not be interfered in Constitutional jurisdiction of this Court. Even otherwise, this jurisdiction is not meant for extending protection to ill-gotten gains, generated out of misuse of authority. Reference in this behalf -can conveniently be made to the cases of Abdul Haq lndar v. Province of Sindh (2000 SCMR 907), Nawab Saeed Raunaq A.I and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Khiali Khan v. Haji Nazir and 4 others (PLD 1997 SC 304), Sheikh Muhammad Hussain v. University of Sindh (2002 PLC (CS) 696), Air Home International v. Government of the Punjab (2002 CLC 780) and Muhammad Yaqoob v.
Secretary, Local Government (2002 PLC (CS) 1625)
7. For the reasons noted above, no case for interference in Constitutional jurisdiction of this Court was made out and consequently all the titled three writ petitions are dismissed being not maintainable. Parties are left to bear their own costs.. .