This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Laws (Continuance in Force) Order, 1977 seeks a declaration to the effect that the order dated 23- 5-1978 passed by the Border Area Allotment Committee, respondent No. 1, is without lawful authority and of no legal effect and that any subsequent order with respect to the land in dispute passed in favour of respondent No. 3 is also without lawful authority and of no legal effect.
2. The facts necessary for the purposes of this petition briefly stated are that agricultural land, measuring 605 kanals 15 marlas, situate in village Sahanke, Tehsil and District Lahore, equivalent to 1,622 produce index units against claim to 3,735 was got allotted vide Khata No: 1 of the said village, in the name of Mst. Bhanno, which was later confirmed on 17-7-1969. On 2.8-3-113, she sold it to the present petitioners, namely Mst. Ghulam Fatima and Rasool Khan, through a registered sale-deed and Mutation No. 104 was got attested pertaining thereto on 29-3-1975. On 15-12-1973, Col. Moeenuddin, respondent No. 2 brought it to the notice of the Board Area Committee that the area in dispute was inter alia, allotted to him in 1964 at Khata No. 13 and thus the same could not be confirmed in the name of Mst. Bhanno in 1969. It also came to the notice of respondent No. 1 that' the remaining land out of the land in dispute was allotted in the name of Jemadar Sardar Khan (not a party) in 1964 against Khata No. 11. The learned Member, Board of Revenue (Settlement and Rehab. Wing), Punjab, Lahore, on 23-1-1976, issued a notice to Mst. Bhanno and the petitioners presumably calling upon them to show cause why the allotment of the land should not be cancelled from their names. Against these proceedings a Writ Petition (W. P. No. 283/R of 1975) was instituted which was accepted on 26-5-1976. 1t was held on the basis of judgment in Writ Petition No. 161-R-76 that-.
"...The notifications issued by the -Provincial Government 'or the Member, Board of Revenue authorising the respondent to function as or in the place of the Committee are unlawful."
After the disposal of this Writ Petition a new Border Area Committee was constituted which again issued a notice to the petitioners on 14-2-1978, and passed -the impugned order dated 23-5-1978, whereby the allotment of land in favour of Mst. Bhanno was cancelled and the land in dispute was restored to the petitioner and Jem. Sardar Muhammad aforementioned. The area in the name of Jem. Sardar Muhammad, it is alleged, has subsequently been allotted to Brig. Iftikhar Ahmad Gill.
Respondent No. 3. This writ petition challenges the order passed by the Border Area Committee dated 23-5-1978,
3. The learned counsel for the petitioners contended firstly, that the Border Area Committee which passed the impugned order had not been legally constituted as there could be no appointment of a representative of the Rehabilitation Com--missioner, Pakistan Rehabilitation Act having itself been repealed ; secondly,that even if it be assumed that the Border Area Committee had been lawfully constituted it was not competent to re-open the matter on 23-5-1978 as the land in dispute had been perma-- nently confirmed in the name of Mst. Bhanno ; thirdly,that under para 10 of Martial Law Regulation No. 9 of 1959 the scrutiny could be in regard to allotments made before 20-3-1959 as is apparent from the words "if after such scrutiny it is satisfied that any allotment was made to a person not eligible for allotment." fourthly,that the Border Area Committee can only scrutinize the past allotments for the purposes of determining whether the allotment was made to a person eligible for allotment under the Rehabili- -tation Settlement Scheme, including the Border Area Scheme and could not determine the claims inter se, of the parties. fifthly,that the decision in W. P. No. 263/R/76 had become res judicata and the matter could not be re-opened by the Border Area Committee ; andlastly,that the order impugned had been passed without giving Ghulam Rasool petitioner an opportunity of being heard.
4. On the contrary, the learned counsel for respondents Nos. 1 and 3 argued that the allotment obtained in the name of Mst. Bhanno and its subsequent alleged confirmation was bogus and was obtained by practicing fraud by Rustam Khan respondent the husband of Mst. Ghulam Fatima petitioner No. 1, who at the relevant time, was posted as Patwari in this village. He argued that it was on his incorrect report dated 23-6- 1969 to the effect that the original allottees, viz, respondent No. 2 and Jem. Sardar Muhammad had not deposited the price of land that the proceeding for allotment in the name of Mst. Bhanno were got initiated. Even on this note, it was submitted, no valid allotment order in favour of Mst. Bhanno exists on the record. The subsequent sale in favour of Mst. Ghulam Fatima by Mst. Bhanno, it was urged, further establishes the involvement and practice of fraud by Rustam Ali Patwari the husband and attorney of Mst. Ghulam Fatima petitioner No. 1.
5. The learned counsel for respondents Nos. 1 and 3 further argued that the amendment in Martial Law Regulation No. 9 of 1959 by virtue of the W. P. Border Area Regulation, 1959, (Punjab Amendment) Ordinance, 1981 validates the orders passed by the Border Area Committee even if it be assumed that it was not lawfully constituted at the time it passed the impugned order. In the same context it was submitted that the impugned order in favour of respondent No. 3 Brig. Iftikhar Ahmad Gill has also been approved by the General Headquarters, Pakistan Army, as is apparent from Annexure `R' and the annexed list of cases approved under the cover of the said letter.
6. The learned counsel for respondents Nos. 1 and 3 next contended that petitioners had been duly served and not only notice was personally served on them but also was issued in the daily "Nawa- i-Waqt" dated 3-2-1978 for appearance on 14-2-1978. On 14-2-1978, Rasool Khan petitioner No. 2 appeared through Rahim Khan his attorney while Mst. Ghulam Fatima petitioner No. 1 appeared through Rustam Khan. On a subse--quent date when Rasool Khan did not appear he was proceeded against ex parte and there is thus no question of not having afforded any oppor--tunity of hearing to him.
7. It was, lastly argued by the learned counsel for respondents Nos. 1 and 3 that the allotment allegedly obtained in the name of Mst. Bhanno from whom the petitioners derive the title being the result of a patent fraud practiced by the petitioners themselves no relief under the writ jurisdiction should be granted to the petitioners. He in this regard relied on Nawab Syed Raunag Ali, etc. v. Chief Settlement Commissioner, etc. (PLD 1973 SC 236) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan etc. (PLD 19'75 SC 331)
8. The learned counsel appearing for respondent No. 2 made the following submissions :-
(i) that apart from the fact that the allotment in the name of Mst. Bhanno the predecessor-in- interest of the petitioners was obtained by practising fraud there was no specific cancellation of the allotment already made in favour of respondent No. 2 as far back as 1964 and even bogus cancellation order of his allotment was passed on erroneous assumption that respondent No. 2 had not paid the price of land. He submitted that the price had been paid on 25-1-1965 which is duly entered in the record of the Department ;
(ii) that even the bogus cancellation order of respondent No. 2's allotment was void ab initio having been passed without notice to the respondent ; (i.e) that the allotment in favour of Mst. Bhanno was a manipulation of Rustam Khan Patwari of the Halqa who subsequently got the land in dispute sold in the name of his were, etc. And the basis of the allotment of Mst. Bhanno being itself fraudulent and there being no lawful order of allotment in her favour all superstructure based thereon has also to fall along with, etc. He in this regard relied on Yousaf Ali v. Muhammad Asiam Zia etc. (PLD 1958 SC (Pak) 104).
(iv) that the allotment in favour of Mst. Bhanno being the result of fraud no relief is admissible to the petitioners as has been held in Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan, Claims Commissioner, etc. (PLD 1965 SC 269).
9. In reply, the learned counsel for the petitioners only submitted that Rasool Khan, petitioner No. 2 being not related to petitioner No. 1 Mst. Ghulam Fatima or her husband Rustam Khan Patwari he cannot be held to be a party to the fraud and that the impugned order is not saved by amendment made by Punjab Ordinance No. III of 1981.
10. Having given consideration to the controversy involved I find force in the submissions made on behalf of the respondents. It is the admitted position that the land in dispute had originally been allotted to Jem Sardar Muhammad and respondent No. 2 and that the allotment in favour of the predecessor-in-interest of the petitioners was obtained after the alleged cancellation of allotment from the name of the aforesaid two persons. It has been held, vide the impugned order, that the alleged cancellation of allotment from the names of respondent No. 2 and Jem Sardar Muhammad was the result of erroneous assumption thatthe price of the land had not been deposited by them. It has also been held by the impugned order that the khata of respondent No. 2 and Jem. Sardar Muhammad was intact till the year 1971 and the allotment had not been cancelled before making allotment in the narUe of Mst. Bhanno afore--mentioned. The impugned order also shows that there was no record available to show any formal lawful order having been passed cancelling the allotment from the name of respondent No. 2 and Jem. Sardar Muhammad as also - the issuing of any notice to the said persons before the alleged order of cancellation. It was on the contrary held that the cancellation order was under forged signatures. In the light of the determination of the above questions of fact coupled with the position that the allotment in the name of Mst. Bhanno the predecessor-in-interest of the petitioners was initiated on the basis of an incorrect report made by Rustam.Khan Patwari the husband and attorney of petitioner No. 1 as is apparent from the photostat copy of Khata No. 13 of village Sahanke annexed with the written statement of the respondents and the nonexistence of any order of a competent authority passing a formal order of cancellation of the allotment on the said report clearly establishes that the question of fact determined by a Tribunal of exclusive jurisdiction is not such which can be interfered with in the constitutional jurisdiction of this Court. The original khata as produced by respondent also showed that the alleged order of cancellation of the allotment of I respondent No. 2 and Jem. Sardar Muhammad does not bear any signatures of Members, Border Area Committee but only mentions under the alleged order of cancellation and the alleged allotment in favour of Mst. Bhanno as under :- the petitioners have not placed do record either any order or copy thereof showing that any order was passed by the Border Area Committee under genuine signatures of its Members cancelling the allotment from the name of respondent No. 2 and Jem. Sardar Muhammad. What has been produced in support of the claim of the petitioners is only the imple--menting documents of the alleged order of allotment in favour of the predecessor-in-interest of the petitioners. That being so, the questions of fact and of fraud determined by a Tribunal of exclusive jurisdiction is obviously not one which could be agitated against in the constitutional jurisdiction of this Court. There can be no denying the well-settled principle of law that the discretionary relief under the constitutional jurisdiction of this Court can only be claimed by a person if his claim is based on bona fides and he comes to the Court with clean hands and for enforce--ment of a legal right obtained by him in a lawful manner. The remedy under the said constitutional provision should not be allowed to be availed of by a person who wants the perpetuation of an illegal act even if the grievance made about the impugned order as to the same being without jurisdiction may be correct. Reference if any required in this behalf may usefully be made to the authorities cited by the learned counsel for the respondents and in particular to Nawab Syed Raunaq Ali v. Chief Settle--ment Commissioner and others wherein it has been held at pages 258-259 as under :- "The law has been summed up well by H. M. Serval in his book-on the "Constitutional Law of India" at page 648 where he says that "even where a Court has the power to issue a writ of mandamus or certiorari, the Court will not do so, if, to grant these writs works injustice in a broad sense.
Acting on this principle, a writ of certiorari has been refused by the Courts in the following cases because to grant it would have had the effect of allowing the technicality of the law to cause unjust enrichment which it was the policy of the law to avoid or would have resulted in the confirmation of a certificate obtained wrongly by suppressing material facts or would have sustained an order of allotment which the petitioner had obtained by suppression of material facts within his knowledge or would have resulted in per--petuating an injustice which had been done to the respondents by an incorrect order passed against them or would result in perpetuat--ing a manifestly illegal order or would debar the taxing authorities from initiating proceedings because the requisite time for such initi--ation had expired.
It is unnecessary to refer to all the authorities cited by the learned author in support of the above illustrations, but I may refer to one, namely, in the case of Abdul Majid v. The State Transport Appellate Authority where the position was in pari materia. The Court refused to grant relief under Article 226 of the Indian Constitution and refused to set aside an impugned order of an Appellate Autho--rity, because, that order had itself set aside an earlier order, which had no validity due to want of jurisdiction as by setting aside the subsequent order the Court would be "countenancing and perpetuating an illegal act.
11. I am therefore of the view that the petitioners own claim to two land in dispute being based on acts which have been determined to the fraudulent no case is made out for interference in the constitutional jurisdiction of this Court and the writ petition merits to be dismissed on this should ground alone.
12. Apart altogether from the above position it may also be observed that the contentions raised on behalf of the petitioners otherwise also have no force in that those are based on the assumption that there ha; been a cancellation of the allotment in favour of respondent No. 2 any Jem. Sardar Muhammad and that there has been a valid allotment any, confirmation thereof in favour of Mst.
Bhanno the predecessor-in-interest, of the petitioners. This having been established that there was neither an, cancellation of allotment of respondent No. 2 and Jem. Sardar Muhammad nor the alleged cancellation was made after due notice to the aforesaid allottees and that the very basis of the alleged cancellation of allotment viz. Non-payment of the instalments by respondent No. 2 is non-existing the allotment if any made in favour of Mst. Bhanno, was of no consequence.
13. The contention raised on behalf of the respondents that the impugned order even if assumed to have been passed by a Border Area Committee not then lawfully constituted stands validated by virtue of the provisions of para. 18 added to Martial Law Regulation No. 9 of 1959 by the Punjab Ordinance No. III of 1981 also appears to have force especial) when the order had been passed on 23-5-1978, whilst the General Head quarters had granted approval regarding the cases in the annexed list, which includes the case of respondent No. 3 on 22-5-1978.
14. In view of the foregoing discussion, this writ petition has no merit and it is accordingly dismissed with costs.