1. SARDAR SAID MUHAMMAD KHAN, CJ--This appeal has been directed against the judgment of the High Court dated 30-6-1991, whereby the writ petition filed by appellant, herein, was dismissed.
2. Brief facts resulting in the present appeal are that evacuee land measuring 26 Kanals, situate in village Jaglari, Tehsil Bagh, was originally allotted to one Muhammad Bashir son of Kala who was refugee from the Indian-held Kashmir. He abandoned his right of allotment by a written agreement executed on 24-8-1963 in favour of Noor Ahmad, the father of the appellant, herein. Before execution of the aforesaid agreement, the land measuring 4 Kanals was transferred by Noor Ahmad, the father of the appellant herein, through a registered sale-deed to the appellant, his son.
3. After the said transfer, Noor Ahmad then applied on 3-9-1963 for the allotment of disputed land to the appellant herein; he also got his statement recorded before the Tehsildar on 6-9-1963 to the effect that land in dispute had been in his possession since long and sometime earlier he transferred the possession of the said land to the appellant. The original allottee also made a statement before Tehsildar on 6-9-1963 and surrendered his allotment where after the same was allotted in favour of the appellant on the recommendations of Tehsildar. Consequently, the land was allotted to the appellant by the Rehabilitation Commissioner on 28-11-1969.
4. Sher Dil, respondent herein, challenged the allotment of the appellant, herein, by filing a revision petition to the Rehabilitation Commissioner on 7-2-1979 which was dismissed on 30-9-1980 on the ground that the impugned order for having been passed by his predecessor was not revisable by him; and that the respondent should have challenged the final order of the allotment made in favour of the appellant on 28-11-1969 and not of A.R.C. Sher Dil, respondent, thereafter, sought reversal of the order made in favour of the appellant through the revision petition filed before the Custodian on 25-10-1980. The revision petition filed by Sher Dil, respondent, was accepted and the allotment in favour of the appellant was cancelled on the ground that as the previous allotment made in favour of Bashir Ahmad son of Kala, refugee, was not cancelled; the subsequent allotment in favour of the appellant could not be made. Consequently, the appellant challenged the order of Custodian by way of a writ petition in the High Court which was dismissed on 28-4-1985. The appellant was thus obliged to prefer an appeal to this Court which was partly accepted in terms that it was not necessary for the Rehabilitation Authorities to pass a specific order for the cancellation of the allotment of the previous refugee-allottee, namely, Bashir Ahmad son of Kala, because under section 7 of the Rehabilitation Act, after the abandonment of his right by the previous allottee, subsequent allotment could be rightly made in favour of a deserving person.
5. However, the case was remanded back to decide the other points involved in the case including the point of limitation regarding the revision petition filed before the Custodian. While remanding the case, the following observations were made by this Court:-- "The other points taken by the appellant in his writ petition wherein the challenge has been made to the correctness of the learned Custodians judgment of the points of limitation, condonation of delay and on merits, on perusal of the impugned judgment, are found to have been left undecided by the High Court. Under the circumstances instead of deciding those points ourselves we think it proper to first have the wisdom of the High Court on those points." It is evident that the point regarding the question of limitation was also to be decided by the High Court. The High Court has again dismissed the writ petition on merits as well as on the point of limitation by observing that under sub-section (4) of section 43 of the Administration of Evacuee Property Act, the Custodian enjoys the power of revision at any time, irrespective of the point of limitation. It is against the aforesaid judgment of the High Court that the present appeal has been preferred to this Court.
6. We have heard the arguments and perused the file. It may be stated at the very outset that the High Court has committed error while dealing with the question of limitation under the provisions of sub-section (4) of section 43 of the Administration of Evacuee Property Act, because the powers of appeal, revision or review of the Custodian under section 43 of the Administration of Evacuee Property Act pertain to the orders passed under sections 20, 22 or 23 of the Administration of Evacuee Property Act and not an order passed by the Rehabilitation Commissioner regarding the allotment of an evacuee land under the provisions of the Rehabilitation laws. The question of limitation was dealt with by this Court in the previous judgment whereby the case was remanded to the High Court and it was opined that under the Rehabilitation law, the period of limitation for revision petition under section 12 of the Rehabilitation Act, 1956, read with rule 10(2) of the Rules known as Pakistan Rehabilitation Rules of 1951, is fifteen days reckoned from the date of the order sought to be revised. However, under sub-rule (3) of rule 10, sections 4, 5 and 12 of the Limitation Act and the like provisions of any other enactment relating to the limitation for the time being in force, have been made applicable while computing the period of limitation under the Rehabilitation Rules. Thus, in the instant case the period for the limitation for the revision petition before the Custodian would be ascertained in view of the provisions of rule 10 of the Pakistan Rehabilitation Rules, 1951 and not in view of the provisions contained in section 43 of the Administration of Evacuee Property Act, 1957. The High Court should have considered the question as to whether in the instant case the revision petition before the Custodian was time barred; and whether the question of limitation was considered and delay was condoned by the Custodian or not. In the instant case, the Custodian while dealing with the question of limitation has made the following observations:-- "As the order was passed ex parte, respondent cannot claim that petition was barred by limitation.
7. In case of an ex parte order, limitation will start from the time of knowledge of the party. In present case, there is nothing to show that petitioner had the knowledge of allotment at the time of passing of impugned order. The point of limitation, being devoid of force is rejected."
8. It is evident that the Custodian has dealt with the question of limitation and has condoned the delay in filing the same. Ordinarily, if the delay is condoned by the relevant tribunal, the same is not disturbed in exercise of writ jurisdiction. Thus, the contention of the learned counsel for the appellant that there were no valid grounds for the condonation of delay in filing the revision petition, is not tenable; especially so when Sher Dil was not a party to the proceedings in which the allotment was made in favour of the appellant.
9. There is yet another aspect of the matter. The findings of the Custodian and the High Court, as indicated earlier, are that the appellant was minor when the land in question was allotted to him as a destitute. It is on the record that this allotment was manoeuvred by Noor Ahmad, the father of the appellant, by transferring his property to his sons, including the appellant. The learned counsel for the appellant argued that in the year 1969 the relevant law was amended and a family owning less than thirty Kanals of the land, became entitled to the allotment of evacuee property. The question arises if Noor Ahmad could avail of the benefit of any such amendment, why he did not obtain the allotment of the land in his favour. Besides, for being a destitute, one has to show that he has no adequate means of income other than the landed property. There is no such proof on the record that Noor Ahmad or for that matter the appellant fell within the ambit of the word destitute as envisaged under the relevant Government order. Thus, the findings of the Custodian and that of the High Court are not open to any exception on the point that the allotment in favour of the appellant, herein, was made in contravention of law. Even if it is assumed that the delay in filing the revision petition before the Custodian was not rightly condoned, the fact remains that the writ jurisdiction cannot be exercised in aid of perpetuation of injustice or to protect an ill-gotton gain by a person. If a party seeks relief by invoking writ jurisdiction, it must show that it has come with clean hands; it has a tangible right, if not a purely legal right, which has been violated. The possession of Noor Ahmad over the suit land was an illegal possession which was not approved by the Custodian or the Rehabilitation Authorities. Therefore, the allotment of the appellant having been made in contravention of law cannot be protected by assailing the order of the Custodian by invoking writ jurisdiction of the High Court. Even if it is found that the Custodian was not justified in condoning the delay in filing the revision petition before him, his order cannot be disturbed in exercise of writ jurisdiction. There is a ring of authorities in support of the aforesaid principle some of which are as under:-- In Wali Muhammad v. Sakhi Muhammd PLD 1974 SC 106, it was observed that the relief in writ jurisdiction being discretionary cannot be invoked to help the retention of ill-gotton gains by a party even if the order passed by a tribunal below is not found strictly justifiable. It was further observed that it is well settled principle of law that the High Courts writ jurisdiction can be invoked in aid of justice and not to help retention of illgotton gains.
10. In Raunaq Ali v. The Chief Settlement Commissioner PLD 1973 SC 236, it was held that an order in the nature of a writ of certiorari or mandamus is discretionary order and its object is to foster justice and right a wrong, therefore, before a person can be permitted to invoke this discretionary power, 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 extraordinary jurisdiction ought not be allowed to be invoked. Applying this principle, the Supreme Court of Pakistan refused to set aside an order passed by the Officer on Special Duty which was clearly without jurisdiction because by this order an illegal order passed by the Deputy Claims Commissioner had been vacated.
11. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with costs.