Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the petitioner has called in question validity of order, dated 15.04.2009 (hereinafter to be referred as the impugned order) passed by the Executive District Officer, Bahawalnagar (now Additional Commissioner (R)/respondent No.2).
2. Unnecessary details apart, the facts, as spelt out in this petition, are that Bagh Ali son of Luqman (father of the petitioner) was allotted 400-Kanals of land falling in Square No.31, 34 & 55 in Mouza Chak No.268/HR, Tehsil Fortabbas, District Bahawalnagar, under Abadkari Scheme, on 09.04.1938.
The allotment in the name of the father of the petitioner to the extent of land falling in Square No.34 & 55 was confirmed upon clearance of requisite dues whereas land comprising Square No.31 was resumed by the District Collector, Bahawalpur, vide order dated 08.01.1943 due to non-payment of necessary dues. The petitioner filed an application, on 14.03.1993, for review of order dated 08.01.1943 before the District Collector, Bahawalnagar which was dismissed through order dated 01.08.1994 against which he filed an appeal before the Commissioner, Bahawalpur Division, Bahawalpur but without any success as the same was dismissed through order dated 19.12.1994 which was assailed by him through ROR No.403 1995 before the Board of Revenue, Punjab, Lahore which was accepted by the Member (Colonies) Board of Revenue Punjab, Lahore vide order dated 29.06.1995 subject to payment of penalty of Rs.5,000/- in addition to the outstanding arears which were deposited by the petitioner. Thereafter, the petitioner had been endeavoring for issuance of Patta Malkiyat in his favour whereupon the District Collector Bahawalnagar referred the matter to the Board of Revenue Punjab, Lahore. Ultimately, the petitioner succeeded to get sanctioned Mutation No.301, dated 27.09.1995, against which Muhammad S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary Siddique Khan (respondent No.4) filed an appeal before the Deputy District Officer (Revenue), Fortabbas, which was dismissed through order, dated 31.03.2006 against which respondent No.4 filed an appeal before the Executive District Officer (Revenue), Bahawalnagar who accepted the same vide the impugned order; hence this petition.
3. Learned counsel for the petitioner begins with the submission that after deposit of the amount, determined by the Member (Colonies), Board of Revenue, vide order dated 29.06.1995 no authority in the revenue hierarchy had the jurisdiction to take any action against the petitioner; that the impugned order amounts to nullify order dated 29.06.1995; that respondent No.4 being alien to the mutation attested in favour of the petitioner had no locus standi to institute proceedings challenging validity thereof; that the petitioner had been enjoying cultivating possession over the land in question for the last many decades; that the appeal was accepted by respondent No.2 on the basis of points which could not be decided without recording evidence of the parties; that when the competent authority accepted the request of the petitioner regarding restoration of land, respondent No.2 had no authority to look into legality thereof; that after attestation of mutation in favour of the petitioner, no adverse action can be taken against the petitioner as his case is covered under the principle of locus poenitentiae; that at the most, in case there was any deficiency on the part of the petitioner, the Board of Revenue could only look into it as per section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 and that the petitioner has been condemned unheard as impugned order has been passed in an ex-parte manner.
4. Conversely, learned counsel representing respondent No.4, while defending the impugned order, submits that as the petitioner could challenge the impugned order by way of revision before the Board of Revenue, instant petition is not maintainable; that instant petition also merits dismissal as the same is hit by the principle of laches inasmuch as order, dated 15.04.2009, has been challenged through this petition which was filed in the year 2011; that the petitioner is not entitled to any equitable relief as he has concealed material facts inasmuch as order passed by Mr. Raza Ali, the then Member (Colonies) Board of Revenue, Punjab, was held inoperative by virtue of communication addressed by the Board of Revenue to the District Collector concerned against which the petitioner filed a suit and after filing written statement by the department he opted to withdrew the same; that the petitioner cannot take any premium on the basis of order, dated 29.06.1995, as the same is self-contradictory for the reason that on the one hand the then Member (Colonies), Board of Revenue, Punjab Lahore held that the petitioner had no legal right to possess land in the year 1979 without any valid reason but on the other he proceeded to allot the same to the petitioner on the sole ground of affiliation; that after resumption of land by state functionaries due to non-fulfilment of terms and conditions of allotment, same cannot be allotted to the same person or any of his successors after more than five decades; that any proceedings for revival of allotment in favour of the original allottee, namely, Bagh Ali, were to be processed in his name but the petitioner with a view to defraud the department as well as other legal heirs of Bagh Ali succeeded to get order, dated 29.06.1995, by filing a petition in his own name; that as a matter of fact name of Bagh Ali was available in S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary list of allottees of land in Tehsil Haroonabad, District Bahawalnagar, whereas land in question is situated in Fortabbas, thus, allotment in favour of the petitioner carries no legal sanctity; that though the petitioner was being represented by Sh. Muhammad Khaleeq Babar, Advocate but neither the petitioner nor the said counsel appeared before respondent No.2 on the fateful day, as a result he was proceeded against exparte, thus, at this stage he cannot agitate that he was not afforded an opportunity of hearing; that the petitioner despite being cognizant of letter No.1560 96/2860/CL, dated 27.11.1996, succeeded to get attested mutation in his favour in a clandestine manner; that when Bagh Ali had no right or interest in the land in question how the same could be allotted in favour of the petitioner and that Bagh Ali admittedly died in the year 1943 whereas the date of birth of the petitioner as per his computerized identity card being of the year 1947, the petitioner cannot claim that he is from the progeny of said Bagh Ali.
5. Learned Assistant Advocate General, while toeing the line of learned counsel representing respondent No.4, submits that as orders passed by Mr. Raza Ali the then Member (Colonies) Board of S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary Revenue, within six months of his retirement, were under review before the competent authority, order dated, 29.06.1995, could not be made a ground for attestation of mutation in his favour and that by virtue of impugned order respondent No.2 has not cancelled the mutation rather he has referred the matter to the District Collector/competent authority for permission to review the mutation attested in favour of the petitioner, thus, instant petition is pre-mature.
6. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that since mutation-in-question was attested in favour of the petitioner after due verification of his relationship with Bagh Ali, this question cannot be re-opened at this stage; that mutations No.5 & 14, attested in favour of legal heirs of Bagh Ali, qua land falling in Tehsil Haroonabad are sufficient to nullify the observation of respondent No.2 that Bagh Ali was not father of the petitioner; that when order passed by respondent No.2 otherwise is untenable, the same cannot be allowed to hold the field on the ground that the same could also be challenged in other proceedings or the petition challenging the same was hit by the principle of laches; that legality of order S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary passed by the Chief Minister regarding review of orders passed by Mr. Raza Ali, the then Member (Colonies) Board of Revenue Punjab, Lahore came under discussion before this Court in various petitions including W.P. No.14522/1995 which was disposed of on 04-06- 1996 with the observation that if there was any doubt about allotment of land in favour of anybody on the basis of orders passed by the then Member (Colonies), Board of Revenue Punjab, Lahore instead of undoing the same through omnibus order each case was to be adjudicated on individual basis. Relies on Abdul Sami v. Abdul Ghaffar (PLD 1990 LHR 378) and Syed Allah Dost v.
Haji Muhammad Alam and 12 others (KLR 1988 Civil Cases 307).
7. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case law cited at the bar.
8. Firstly taking up plea of the petitioner that respondent No.4 had no locus standi to file appeal against him before respondent No.2, I am of the view that generally appeal can only be filed by an S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary aggrieved person but here the matter is entirely different. If for the sake of arguments, it is presumed that in the capacity of an individual respondent No.4 had no locus standi to file appeal against attestation of mutation in favour of the petitioner even then being a citizen his right to agitate any matter regarding allotment of state land to person who otherwise was not eligible for that cannot be taken away. Moreover, order, dated 29.06.1995, was under scrutiny before the Board of Revenue Punjab as is manifest from the contents of the declaratory suit filed by the petitioner challenging vires of letter, dated 27.11.1996, referred supra as well as those of communication bearing No.CB/188 16.06.1997. Learned counsel for the petitioner has not denied the fact that prior to attestation of mutation in favour of the petitioner the Board of Revenue Punjab, Lahore asked the District Collector, Bahawalnagar, to submit report regarding allotments made on the basis of orders passed by Mr. Raza Ali, the then Member (colonies), Board of Revenue Punjab, Lahore within six months of his retirement. Had the District Collector certified claim of the petitioner the position would have entirely been different but when the S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary matter regarding fate of the order passed by the then Member (Colonies) in favour of the petitioner was pending decision with the competent authority it was not justified to attest mutation on the basis of order which was under review at that stage. In this scenario, the objection raised by learned counsel for the petitioner is of little value, thus the same is accordingly spurned.
9. It is imperative to note that neither the District Collector Bahawalnagar executed any Conveyance Deed in favour of the petitioner pursuant to order dated 29.06.1995 nor the scrutiny of allotment in favour of the petitioner was completed as per direction of the Board of Revenue, Punjab. Moreover, respondent No.2 having come to know about attestation of mutation in favour of the petitioner has not cancelled the same rather he has referred the matter to the District Collector.
It is important to observe over here that the impugned order apart, according to section 164 of the West Pakistan Land Revenue Act, 1967 a Collector enjoys power to adjudge validity of an order passed by any of his subordinates of his own or on the move of somebody. In this state of affairs plea of the S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary petitioner that after deposit of requisite dues as per order of the Member (Colonies) Board of Revenue, Punjab, Lahore, the mutation in question was not open to review, cannot be given any weightage especially in the wake of the fact that neither order passed by the then Member (Colonies) Board of Revenue was supported by any law, policy or rules framed by the government nor any conveyance deed was ever issued in favour of the petitioner on the strength of said orders.
10. Though learned counsel for the petitioner, during the course of arguments, has not specifically denied the factum of filing of declaratory suit by the petitioner, titled Bashir Ahmad v. Province of the Punjab, impugning the aforesaid letters but not a single word has been uttered by the petitioner in this petition which speaks volumes about his contumacious conduct. It is well established by now that a person who seeks equity must do equity as held by apex Court of the country in the case of Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education Peshawar and others (2012 SCM R 673) and if a person is found guilty of concealment or suppression of material facts, he cannot be given any benefit while exercising Constitutional jurisdiction of this Court.
11. A perusal of file shows that the petitioner has challenged order, dated 15.04.2009, through this petition which was filed on 01.11.2011 meaning thereby that the same is hit by the principle of laches.
No forth-coming answer has been advanced by learned counsel for the petitioner justifying such delay. As per judgment of the apex Court of the country rendered in the case of Muhammad Din v.
Abdul Ghani and another (2012 SCM R 1004) when a petition is hit by laches same deserves to be dismissed on that score alone.
12. Admittedly, the order impugned in this petition could conveniently be challenged by the petitioner before the Board of Revenue through revision petition, however, the petitioner has opted to file instant petition while bypassing the alternate remedy. The opening lines of Article 199 of the Constitution are sufficient to conclude that Writ Petition only lies when no other remedy is available.
In presence of alternate remedy Writ Petition cannot be entertained. Reliance in this regard is placed on the case reported as Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969).
13. Learned counsel for the petitioner has relied upon judgment dated 04.06.1996 passed by this Court in W.P. No.14522/1995 to argue that allotment in favour of the petitioner cannot be cancelled on the basis of general direction issued by the Chief Minister or Board of Revenue. The operative para of the aforesaid judgment is reproduced herein below for ready reference: - "4. Faced with this situation, learned Assistant Advocate General on instructions states that the Board of Revenue shall proceed in the matter on case-to-case basis uninfluenced by any order passed by the chief Minister and if in a given case the Board of the Revenue is of the view that the review of the order is called for it shall proceed upon in that particular matter in accordance with law after following the prescribed procedure."
A perusal of afore-quoted portion shows that it was observed that in case Board of Revenue was of the view that there was a case fit for review it would follow the prescribed law. The Board of Revenue Punjab had summoned reports from the District Collector, Bahawalnagar, regarding fate of allotment in favour of the petitioner. Admittedly, the mutation, subject-matter of instant petition, was attested during pendency of said inquiry which speaks volumes about collusiveness of the revenue staff with the petitioner. In the given circumstances, the judgment relied upon by the petitioner does not render any help to him rather goes against him as this Court permitted the Board of Revenue to scrutinize the matter on case-to-case basis and in no way restrained Board of Revenue to look into allotments made in favour of allottees on the basis of orders passed by the then Member (Colonies), Board of Revenue Punjab, Lahore.
14. It is very astonishing that on the one hand Mr. Raza Ali, the then Member (Colonies) Board of Revenue held that possession of the petitioner over land in dispute was not justified as the same was not supported by any valid order but on the other he has allowed the revision petition filed by him on the ground that the petitioner is entitled for allotment of land in question on account of his affiliation with the said land. I fail to understand that how such a novel idea of allotment of state land to a person was conceived by a person holding the post of Member (Colonies), Board of Revenue Punjab, Lahore who S.No. Of order/ Date of order/ Order with signature of Judge, and that of proceeding proceeding parties or counsel, where necessary otherwise was supposed to jealously guard the interest of the State especially in respect of land owned by it. Moreover, the then Member (Colonies), Board of Revenue Punjab, Lahore while passing order, dated 29.06.1995, did not consider that when allotment from the name of original allottee, namely, Bagh Ali, was cancelled in the year 1943 how the same could be revived in the year 1995 and that too exclusively in the name of the petitioner.
15. Learned counsel for the petitioner has emphatically argued that impugned order amounts to review order, dated 29.06.1995, by a subordinate authority. In this regard, I am of the view that when very sanctity of order, dated 29.06.1995, was under review before the Board of Revenue, Punjab the said argument is of little importance. Learned counsel for the petitioner has not negated in clear cut words that at the time of attestation of mutation in favour of the petitioner the matter was pending with the District Collector. Moreover, no swindler or plunderer can be allowed to swallow any state land on the basis of orders which otherwise are backed by law. The apex Court of the country while dealing with the fate of ill-gotten in the case of Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institution (EOBI) through through President of Board, Board of Trustees and others (2014 SCM R 949) has interalia observed as under: - "23. Indeed, if we allow these petitions substantial hardship is likely to be caused to many of the respondents/appointees who will lose their appointment/jobs because of the illegalities in their respective appointments committed by EOBI, but the fact remains that such ill-gotten gains cannot be defended/ protected under any cannon of law or even on humanitarian considerations, as, such gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts, being citizens of this country, with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum-merit criteria to be observed as per the applicable rules and regulations of the EOBI" (emphasis provided).
The apex Court of the country in the case of Muhammd Shoaib and 2 others v. Government of N.W.F.P. Through The Collector, D.I. Khan and others (2005 SCM R 85) has also observed as under:- "12. The object of the establishment and the continued existence of the Courts of law is to dispense and foster justice, and to right the wrongs. This purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful. It is for this reason that the Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains. Nor having the Courts ever opted to exercise their powers in aid of injustice or to grant any relief to persons with unclean hands or for protecting the unethical or undeserved benefits...
18. Having thus examined all aspects of the matter, I am of the opinion that these appeals which seek protection of ill-gotten gains and perpetuation of an unethical illegality deserve to be dismissed so that this Court is not blamed for encouraging a culture where might was right and where people were permitted to secure benefits through unfair mean." (emphasis provided)
16. So far as the case law cited by learned counsel for the petitioner is concerned, suffice it to observe that the same is not applicable to the facts and circumstances of instant case inasmuch as in the case of Abdul Sami (Supra) the preposition in pith and substance revolved round the powers of this Court to take care of an order passed by an executive without lawful authority whereas in the case in hand when the allotment in favour of the petitioner, prima-facie, is bereft of backing of any law, this Court cannot exercise its Constitutional jurisdiction in his aid especially when not only his petition is hit by the principle of laches but he has also alternate remedy of revision against the impugned order. Now coming to case of Syed Allah Dost (Supra) I am of the view that the same is also distinguishable for the reason that in the said case the order passed by the Assistant Commissioner was set aside on the ground that the same was coram-non-judice whereas in the case under discussion there is no dispute regarding the powers of respondent No.2 to hear appeal against an order passed by the erstwhile Deputy District Officer (Revenue) presently Assistant Commissioner.
17. For what has been discussed above, I see no force in this petition which is hereby dismissed with no order as to costs.