' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the order, dated 22nd March, 1980 passed by respondent No, 1, Border Area Allotment Committee Lahore.
2. The facts necessary for the purposes of this petition, briefly stated, are that land measuring 392 kanals 5 marlas situate in Mauza Narowal, Tehsil Narowal, District Sialkot was allotted to the petitioner under the Border Area Allotment Regulation (Martial Law Regulation No, 9 of 1959) and mutation bearing No, 5201, dated 19th September, 1962 was sanctioned in favour of the petitioner. It has been asserted that the petitioner has made payment of the dues and has committed no violation of the terms on which he was allotted the land. The petitioner is admittedly living in Australia though it has been asserted that he left the country with the permission of the General Headquarter. The petitioner executed a power of attorney in favour of Subedar-Major (Retd.)
Muhammad Sarfraz Khan on 30th October, 1972 presumably at the time of leaving for Australia.
This power of attorney conferred powers for management of the land, for giving it on lease, for selling it, for execution of sale-deeds pertaining thereto and also for institution and withdrawal of suits in civil, criminal and revenue Courts.
' In the absence of the petitioner, proceedings for cancellation of allotment of land from the name of the petitioner were taken on the motion of respondent No, 2 who had made an application for exchange of the land allotted to him with the land in dispute and in his application had disclosed that the petitioner had permanently migrated from Pakistan and settled in Australia.
' The Border Area Committee, respondent No, 1 issued a letter to the General Headquarters on receipt of this application of respondent No, 2 on which the G. H. Q. Confirmed that the petitioner is absent from his lands and is living in Australia. The G. H. Q. Also recommended the taking of legal action in regard to the allotment of the land. The petitioner was summoned by the Border Area Committee but always Subedar-Major (Retd.) Muhammad Sarfraz Khan appeared as attorney of the petitioner. His statement was recorded and he admitted that the petitioner is living in Australia, but, at the same time, he asserted that he often comes to Karachi to meet her daughter there. It was, however, admitted that he never comes to the lands. In the light of the above position the Border Area Committee, respondent No, 1 came to the conclusion that since the petitioner is living in Australia, is not fulfilling the conditions on which the land was allotted to him and had violated the provisions of Martial Law Regulation No, 9, he was not entitled to retain allotment of the land in dispute. Consequently by the impugned order, dated 22nd March, 1980 the allotment of the land from the name of the petitioner was cancelled.
' The present petition is directed against the above-mentioned order of the Border Area Allotment Committee and was instituted in the name of the petitioner by the aforementioned Subedar-Major (Retd.) Muhammad Sarfraz Khan as attorney of the petitioner.
3. Respondent No, 2 in his written statement has taken a preliminary objection about the maintainability of the petition and the authority of Subedar-Major (Retd.) Muhammad Sarfraz Khan to have instituted the same as attorney of the petitioner.
' The learned counsel for respondent No, 2 raised the preliminary objection on the first date of hearing and submitted that Subedar-Major (Reid.) Muhammad Sarfraz Khan who has signed this petition and the power of attorney in favour of the counsel was not possessed of the power to commence and institute the present petition in the High Court by virtue of the power of attorney, dated 30th October, 1972 executed in his favour by the petitioner. The learned counsel referring to the contents of the power-of-attorney, a photostat of which has been placed on record, pointed out that no power has been conferred by it for institution of any writ petition or any other petition in the High Court pertaining to the land in dispute and that the power is restricted to cases that may arise in civil, criminal and revenue Courts in respect thereof. It was urged by him that power of attorney is a document which has to be construed strictly and interpreted so as to allow the doing of such acts only which are specifically bestowed on the attorney. Reference in support of this contention was made, by the learned counsel to Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. And others (1).
' The learned counsel for respondent No, 2 with reference to rule 5 of Chapter 4-J, Vol. V of High Court Rules and Orders submitted that a constitutional petition in view of the above provision could either be filed by the petitioner himself or by a counsel appointed under his own hand. He further contended that in his view the scope of this rule cannot be extended to cover the filing of a petition by an attorney and even if it be so extended the petition could only be filed through an attorney appointed in writing specifically for this purpose. The learned counsel argued that since admittedly the present petition has neither been filed by the petitioner himself nor by a counsel appointed by him nor by a competent attorney it merits to be rejected on this ground alone. In support of his above contention the learned counsel relied on United Bank Ltd. And another v. Asti Khurshid Hussain etc. (2) in which a constitutional petition was dismissed for the reason that it had not been signed by the writ petitioners and the power-of-attorney had also not been signed by them in favour of the learned counsel appearing for them.
' The learned counsel for respondent No, 2 in this regard lastly contended that the affidavit filed by the petitioner on 16th February, 1982 after the case had been heard once deposing that he had authorized Subedar-Major (Retd.) Muhammad Sarfraz Khan to institute the present petition would not be of any consequence and would not validate the proceedings which were initially incompetent and in any case the proceedings would be deemed to have been instituted on the date of filing of this affidavit and thus would suffer from !Aches, 1) PLD 1969 Kar. 123 (2) 1982 CLC 138 ' As regards the subsequent power of attorney executed by the petitioner in favour of Subedar- Major (Retd.) Muhammad Sarfraz Khan the learned counsel submitted that this can only be construed to confer powers for future acts.
4. The learned counsel for the petitioner, in reply, submitted that the power of attorney, dated 30th October, 1972 can be construed to have conferred the power to initiate proceedings in respect of the land in any Court whatsoever, including the High Court.
' He further urged that the petitioner having validated and ratified the proceedings already taken by his attorney through the filing of an affidavit after his personal appearance in the Court and by conferment of a further general power of attorney inter alia containing the specific recital of conferring power for filing a writ petition, the present petition should be deemed to have been instituted on behalf of the petitioner validly with effect from the date it was instituted and therefore the question of laches or the non-maintainability of the writ petition would not arise.
The learned counsel for the petitioner further submitted that it is well settled that in any proceeding the non-signing of a petition plaint, or the non-availability of Vakalatnama at the time of institution of a proceeding would not be fatal to the proceedings provided the proceedings already initiated are owned and ratified by the person on whose behalf these have been initiated. The learned counsel in this regard referred to Allah Bakhsh and another v. Municipal Committee of Rohtak (1)
Lodd Govindoss, Krishnadas Varu v. P. M. A. R. M. Muthia Chetty (2) and Bombay, Baroda and Central India Ry. Co. Ltd. v. Siyaiji Mills Co. Ltd. Baroda (3).
5. The learned counsel for respondent No, 1 supported the contentions of the learned counsel for respondent No, 2 on the preliminary objections.
6. I have given anxious consideration to the controversy involved. I am of the view that the rule (rule 5 of Chapter 4-J, Vol. V of High Court Rules and Orders) providing for a petition to be filed in person or through a counsel cannot be so construed as to exclude the application of general principle of law that whatever can be done in person can also be done A through an agent whom the law treats as alter ego of the party. A contrary view cannot be countenanced as it would lead to grave hardship and inconvenience to litigants who may for valid reasons be not in a position to act in person in a given case.
7. Having held so, the next question that arises for determination is as to the manner of authorization by the person concerned in favour of an agent. There is no provision laying down that such authorization shall be by a formal document or, for that matter, in writing. In the absence of any such B inhibition in matters of constitutional jurisdiction of this Court as to the form of authorization there is no reason to exclude the possibility of an oral authorization provided it is genuine. Having regard to the circumstances of the instant case viz, the appearance of the petitioner in person one
(1) AIR 1926 Lah. 223 (2) AIR 1925 Mad. 660
(3) AIR 1927 All. 514 ' the first two or three dates of hearing, the filing of an affidavit by him specifically deposing that he had authorized Subedar-Major (Retd.) Muhammad Sarfraz Khan to institute this constitutional petition, the execution of another general power of attorney specifically providing for the filing of a writ petition in the High Court and the filing of the writ petition at a time when the petitioner was abroad there seems no reason to discredit the authorization, especially when there is no rebuttal filed by the respondent to the above factors.
8. Apart altogether from the above position, the apparent tenor of the document, viz. The power of attorney dated 30th October, 1972, is to constitute Subedar-Major (Retd.) Muhammad Sarfraz Khan as attorney in all Courts which the petitioner could conceive of at the time of the execution of the power of attorney. The said power of attorney expressly mentions all disputes pertaining to the land in dispute in which the petitioner may be involved, inter alia, in civil Courts which in the attendant circumstances and by a beneficial interpretation may well apply to the High Court exercising constitutional jurisdiction in a civil matter. A different view would tantamount to making fetish of a technicality. It is well-settled that the main object behind legal formalities is to ensure interests of justice, and that procedural laws, legal formalities and technicalities, unless of a, nature which cannot be overcome, shall not be allowed to defeat the ends' of justice. Reference in this regard may usefully he made to Manager D Jummu & Kashmir State Property in Pakistan v.
Khudayar and another (1). The above discussion regarding the preliminary objection therefore leads to the irresistible conclusion that it does not merit to be sustained.
9. Before parting with this aspect of the matter I may also observe that the case cited by the learned counsel for respondent No, 2 reported as 1982 CLC 138 is distinguishable in that the above aspects of the matter were not involved therein.
10. The learned counsel for the petitioner on merits contended as under :-
(i) that the petitioner is a national of Pakistan as is apparent from the affidavit filed by him in the Court after the first hearing of the petition and from the copy of the passport submitted by him ; that he has not permanently settled in Australia and that his daughter being admittedly a resident of Pakistan he frequently visits this country. It was urged that the absence of the petitioner from Pakistan being temporary cannot be made the basis of cancellation of this allotment ;
(ii) that there is no basis available in law to have cancelled the allotment of the petitioner even if it be assumed that the petitioner is in Australia permanently ; and
(iii) referring to para. 10 of Schedule III to Zone 'B' Martial Law Regulation No, 9, the learned counsel submitted that the allotment of a person is liable to be cancelled only on breach of any of the conditions contained in paras. 5, 6 and 9 of the said schedule which paras. Have no relevance to the basis on which the allotment of the petitioner has been cancelled.
(1) PLD 1975 SC 678
11. The learned counsel for respondent No, 1, on the other hand, contended- ' first, that it is a mandatory requirement for an allottee that he must reside in the estate in which he holds allotment as is provided by para. 2 of Schedule III to Martial Law Regulation No,
9. The learned counsel submitted that the exception to the above rule is provided by para. 2 (a) of the above schedule which lays down in the case of a serving officer that his personal residence in the estate may be dispensed with during the period of his service under the Government. It was argued by him that the petitioner being admittedly not in service as he has retired and on his own showing being not a resident in the estate he having shifted to Australia since 1972 the cancellation of allotment is well-warranted in law as the very basis of allotment has been violated by the petitioner ; ' secondly, that the petitioner himself admittedly applied to the General Headquarters for permission to settle in Australia in reply to which he was informed, vide Annexure 'R. 1' to the written statement of respondent No, 2, that G. H. Q. Has no objection to the petitioner residing abroad and to settle down there, he cannot now turn back and say that he is not permanently settled in Australia. In the same context the learned counsel pointed out that in his statement before the Border Area Committee the attorney of the petitioner also admitted that the petitioner is residing in Australia and that he has not come to the estate ever after leaving for abroad ; ' thirdly, that the petitioner having shifted to Australia will also be not able to abide by para. 4 (a) of Schedule III ibid, and ' lastly, that the contention of the learned counsel for the petitioner that cancellation of allotment under para. 10 of Schedule III could be only made on account of violation of rules 5, 6 and 9 has no substance as it has been made in disregard of the fact that para. 10 has since been amended and substituted so as to empower the Border Area Committee to cancel the allotment for breach of any of the conditions mentioned in Schedule III. He referred to the amendment brought about in Zone "B" Martial Law Regulation No, 9 by the W. P. Border Area Regulation, 1959 (Punjab Amendment) Ordinance III of 1981.
13. The learned counsel for respondent. No, 2 adopted the argument advanced by the learned counsel for respondent No, 1 and further submitted that para. 3 of Schedule III has also been violated by the petitioner and that not only the petitioner has committed breach of a number of conditions of Schedule III but also he has ceased to be eligible for allotment under Schedule I as he no longer is possessed of qualifications contained in paras. 4 and 6 of Schedule I.
' The learned counsel for respondent No, 2 also submitted that the very object of the scheme would be defeated if such allotments as held by petitioner No, 1 are maintained.
14. The learned counsel for the petitioner, in reply, contended that amendment in para. 10 of Schedule III having been enforced on 1st February, 1981 and being not retrospective shall not apply to the petitioner's case whose allotment had been cancelled on 23rd March, 1980.
15. The learned counsel for respondent No, 2 took permission of the Court to reply to the above argument advanced by the learned counsel for the petitioner. He submitted that in addition to the fact that there are established violations of statutory rules committed by the petitioner regarding allotment of land under the Border Area Committee Regulation which disentitled him for any relief from this Court in exercise of its constitutional jurisdiction as held in Kohinoor Sugar Mills Ltd. v.
Market Committee Jauharabad and another (1), even if it be assumed that the operation of the amended para. 10 could not effect the petitioner's case it would be a futility to set aside the impugned order as the Border Area Committee would under the amended para be entitled to take up the case afresh and cancel the allotment of the petitioner since the breaches of the conditions of Schedule III particularly the absence of the petitioner from the estate is fully established on the petitioner's own showing and is a continuing one till date. The learned counsel referring to Writ Petition No, 4/1960 titled Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre A.
Karachi and others and C. P. S. L. A. No, 92/1961 titled Sh. Rahmatullah v. The State and another (2) submitted that in similar circumstances the issuing of a writ was not considered desirable.
16. The basic question which falls for determination in this case is whether in the attendant circumstances the allotment of the land in dispute in favour of the petitioner could be cancelled by the Border Area Committee for reasons recorded in its impugned order dated 22nd March, 1980.
The relevant provisions of the W. P. Border Area Regulation (Martial Law Regulation No, 9, Zone 'W), 1959 which may have a bearing on the controversy are reproduced hereunder for facility of reference :- "2. The provisions of this Regulation, or any order made or direction issued thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority or in any rule of custom or usage, or in any contract, instrument, deed or other document."
5. (a) If a committee, after such enquiry as it thinks fit and after giving the person affected an opportunity of being heard, is of the opinion that any person residing, carrying on business or other occupation, or having property, in a border area, is or has been engaged in smuggling or in any other activity prejudicial to the economy or security of Pakistan, it may, with the previous approval in writing of the Deputy Commissioner of the district concerned, declare, by order in writing, such person to be an undesirable person and direct him to submit, within such time as may be specified in the order, a statement giving full particulars of all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control.
(b) If a person in respect of whom an order under sub-paragraph (a) has been made has no immovable property within a border area, he
(1) PLD 1976 Lah. 1284 (2) PLD 1963 SC 633 ' shall, within seven days of the order, remove himself and shall not enter into, or stay in, any border area without the permission in writing of the Deputy Commissioner of the district concerned."
"6. (a) A Committee may, by order in writing, direct an undesirable person to surrender, within such time as may be specified in the order, all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control-
(i) if such property is not evacuee property, to the Deputy Commissioner of the district within which such property is situated, and
(ii) if property is evacuee property to the Deputy Rehabilitation Commissioner within whose jurisdiction such property is situated: ' Provided that no such order shall be made in respect of any owner or occupancy tenant of agricultural land, or any allottee of such land under the West Pakistan Rehabilitation Settlement Scheme, other than the Border Scheme, unless such compensation as is provided in such paragraph (b) of paragraph 8 has been offered.
(b) An undesirable person in respect of whom an order has been made under sub-paragraph (a) shall, within thirty days after the expiry of the period specified in the order, remove himself from the border area in which he is found and shall not thereafter stay in, or enter into any border area without the permission in writing of the Deputy Commissioner of the district concerned."
"7. If any property required to be surrendered under paragraph 6 is not surrendered within the period specified in the direction issued thereunder, the Deputy Commissioner or the Deputy Rehabilitation Commissioner, as the case may be, or any officer authorized by him, or the committee or any officer authorized by it, may take possession of the property by evicting any person in possession thereof with such force as may be necessary for the purpose."
"15. No provisions of this Regulations or order made or direction issued thereunder, shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority, except as provided in this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter arising out of the operation of this Regulation."
"MARTIAL LAW REGULATION NO. 9, ZONE "B"
Schedule I ' The following categories of persons will be considered eligible for allotment of evacuee land/property for the purpose of Regulation 9 :-
(4) Service and ex-servicemen recommended by General Headquarters.
(5) Service and ex-servicemen already resettled under the scheme subject to the scrutiny of their bona fides.
(6) Officers approved and recommended by General Headquarters for providing leadership."
Schedule II "(2) The new cases will be allotted land on the revised increased scale as follows
(a) Service and ex-servicemen up to 25 acres of land.
ARMY OFFICERS ' Fifty acres of land to an officer (one officer in each Patwar circle)."
Schedule III "2. An allottee must reside in the estate in which he holds allotment except that-
(a) where the allottee is a serving officer, his personal residence in the estate may be dispensed with, during the period of his service under the Government provided at least one of his able- bodied relatives or an ex-servicemen of the prescribed age resides therein.
(b) Where the allottee is a serviceman other than an officer his personal residence in the estate will be dispensed with if an able-bodied representative of the prescribed age resides therein.
"4. (a) Allottee or his representative will readily respond to the call from appropriate Army or civil authorities in case of an emergency.
In the case of an alarm raised in the locality indicated a raid or similar incident the allottee or his representative shall be bound to render immediate help for the protection of the life and security of the persons affected.
"8. If the allottee fails to acquire a house in the village abadi, he should build one within a year, of the allotment of a plot of land for the purpose.
"10. As amended by W. P. Border Area Regulation, 1959 (Punjab Amendment) Ordinance III, 1981 :- ' The allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled."
17. On a conjunctive reading of the aforementioned provision of W. P. Border Area Regulation, 1959 (Zone "B" Martial Law Regulation No, 9) and the Schedules annexed thereto it clearly emerges that the purpose of framing this Regulation and scheme is to habitate the border belt of the country with persons of high integrity, unblemished record and possessed of the qualities of bravery, leadership etc. So that in the events of emergencies requiring protection of the geographical borders of the country these inhabitants could assist the Armed Forces in keeping the enemies of Pakistan away from entering the country's territories and in the days of peace to hay a check and put a restraint on anti-social and anti-State activities such a smuggling etc. The peculiar requirement of para. 2 of Schedule II to Zone "B" Martial Law Regulation No, 9 providing for allotment to Army Officers by placing one officer in each Patwar circle coupled with the requirement of para. 6 of Schedule I to Zone "B" conferring eligibility o such officers as may be approved and recommended by General Headquarte for providing leadership and the further requirement for an officer by virtue of para. 2 of Schedule III to Zone "B" Martial Law Regulation No, 9 that the officer who is allotted land has to reside personally in the village and his personal presence could be only dispensed with while in service of the Government in contrast to the provision regarding the requirement for a serviceman allottee where the personal residence of the serviceman be dispensed with for all times clearly establishes that the officer who is allotted land has of necessity to live in the village and the reason therefor is that he is supposed to provide leadership in eventuality enumerated above.
18. It obviously follows from the statutory provisions governing the allotment of land under Border Area Regulation No, 9 as called out above that the absence of the petitioner from the village/estate having been established on his own admission and the undoubted position also being that h is not absent on account of service with the Government, the allotment in his name cannot be maintained especially when para. 10 of Schedule III, Martial Law Regulation No, 9 has been amended so as to include the power to cancel the allotment in case of breach of any of the terms and conditions as contained in the said schedule. This amendment it appears has been brought about to put a check on the allottees who after allotment were/may not be complying with the provisions under which they had obtained allotment, one of the important amongst those being the requirement o residing in the estate.
19. I would also agree with the submission made by the learned counsel for respondent No, 2 that allotments of land in favour of such officer who are absent from the lands allotted to them and are not residing in the estate do not merit to be maintained as, in my view, maintaining such allotments would tantamount to creating a class of absentee landlords, and sure enough the Border Area Scheme was promulgated not only to give benefit to retiring/retired Army Officers of owning lands but had of nieces city the purpose of ensuring the security of the border belt of the country by habitating it with officers who should in eventualities be present at the spot to provide leadership to the inhabitants.
20. In the light of the above position it is manifest that the petitioner having left for abroad and being absent from the estate for the last over eight years before the allotment was cancelled had disentitled himself to retain the allotment.
21. It may be observed here that the petitioner has left for abroad for good is not only established by the material on record, such as the statement of the attorney before the Border Area Committee, his application to the General Headquarters, permission of the G. H. Q. On that application etc., but the fact is owned by the petitioner himself in his general power of attorney, dated 27th February, 1982 wherein in the opening sentence the petitioner has categorically stated as below while giving his description : {{URDU TEXT}}
22. The further point that may have to be dealt with before the application of para. 10 of Schedule III to Martial Law Regulation No, 9 be held to be applicable to the case in hand in the amended form is the objection that the para having not been made applicable retrospectively could not be applied to the case of the petitioner which was decided on 22nd March, 1980.
23. There are two factors which have prevailed with me to hold that this contention of the petitioner cannot be given any effect : firstly, that while deciding a controversy the supervening changes in law and facts have of necessity to be considered and given effect by the Court. Now, after the decision by the Border Area Committee, and before this case came up for hearing before this Court, para. 10 ibid had been amended and the amended law will have to be taken into consideration by me before deciding whether the impugned order should be set aside or maintained. This para as presently existing lays down that the allotment of a person can be cancelled if he violates and causes breach of any of the terms of Schedule III to Zone "B" Martial Law Regulation No,
9. It being the admitted position, as already discussed above, that the petitioner is residing in Australia and is absent from the estate even now the Border Area Committee will be competent to invoke the provisions of para. 10 aforementioned by taking proceedings afresh and cancel the allotment of the petitioner despite the position that the impugned order may have been set aside by holding that this para in the amended form could not be applied retrospectively. The setting aside of the impugned order on this technical basis will therefore be only a futile exercise and it will amount to giving an opportunity to the Border Area Committee to nullify this Court's writ by taking proceedings for cancellation of allotment of the petitioner afresh. Dealing with a similar question the Supreme Court of Pakistan in PLD 1963 SC 633 has held as under.
"The Court will not grant a writ to produce certain effect when the law provides between the parties affected by the writ to nullify the Courts writ unilaterally and the circumstances enabling such action are found to be present." secondly, there are established violations of law committed by the petitioner about the terms and conditions under which allotment in dispute was made to him under the Border Area Scheme. The ought not to be any cajole with the proposition that any person who has been violating law cannot be allowed to succeed in the discretionary relief that can be granted to an aggrieved person by this Court in exercise of its constitutional jurisdiction. It is a must and should always be expected of a person invoking constitutional jurisdiction of this Court to seek relief by approaching the Court with clean hands and claim a relief only when he is himself not violating the provisions of law, especially of the law under which he is claiming the entitlement.
24. In view of the foregoing discussion there is no merit in this petition which is accordingly dismissed with costs.