The above-titled writ petitions raise an identical question of law and facts, as such are disposed of by this common order.
2. The facts giving rise to these writ petitions are that the allotments of plots in dispute were made by the Chairman/Mayor, Municipal Committee/Corporation, Mirpur. The Government of Azad Jammu and Kashmir, respondent No. 1, on the general complaint, constituted a Commission of Inquiry which, after enquiry, arrived at a conclusion that the allotments were illegal and could not be maintained. The Government in consequence, cancelled the above allotments through Notification No. Admn/Inquiry/H-11(109) 1/94 issued by it on February 20, 1994. The above-noted writ petitions have been filed to challenge the legality of the aforesaid order.
3. The learned counsel for the petitioners, Ch. Muhammad Azam Khan, Mr. Riaz Alam, Mr. Abdul Shakoor Khaukhar and Mr. M. Y. Arvi, raised the following points in support of the writ petitions:---
(i) That the allotments in favour of the petitioners have been made by the competent authority.
The petitioners took over the possession of their respective plots after depositing their costs;
(ii) that the Azad Jammu and Kashmir Local Government Act and the Rules made there under, including the Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates Rules, 1985 do not empower the Government/respondent to make any order or notification for the cancellation of the plots, as such the notification issued in this regard is without jurisdiction and lawful authority;
(iii) that the allotments were cancelled from the names of the petitioners without providing them any opportunity of hearing, as such, the order violates the principle of natural justice, audi alterm partem ; and
(iv) that the allotments made by the competent authority of exclusive jurisdiction, could not be interfered with by the Government/respondent in an arbitrary manner.
4. On the other hand, the learned Additional Advocate-General, Mr. M. Akram Mughal and Mr. Liaqat Ali Khan, the learned counsel representing the respondents, controverted the arguments addressed by the learned counsel for the petitioners, in the following manner:---
(i) That the allotments are illegal and without jurisdiction, as such, void ab initio;
(ii) that all the allotments involved in the writ petitions in hand, were made by the Chairman/Mayor, Municipal Committee/Corporation, without following the mandatory provisions of law, as such, the orders of allotments are clearly against the statutory provisions of law;
(iii) that the Chairman/Mayor Municipal Committee/Corporation, had no lawful jurisdiction to allot the plots in his own discretion. It was explained that except section 16 of the Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estate, Rules, 1985, the Chairman/Mayor was not empowered to make allotments anti the powers vested under the above provision could not be exercised in the cases in hand for lack of necessary requirements to be satisfied therein;
(iv) that the Inquiry Report and the record made available clearly indicate the position of allotments as illegal, without jurisdiction and lawful authority. Therefore, the petitioners, on the basis 6f above illegal and void orders of allotment in their favour cannot be maintained the present writ petitions;
(v) that the Government of Azad Jammu and Kashmir, under the Local Government Act and other relevant law, has lawfully exercised the power of cancellation; and
(vi) that the petitioners are not entitled to any notice before the cancellationas no vested rights are accrued to them on the basis of illegal act.
5. I have heard the learned counsel for the parties and also gone through the record. The controversy relates to allotment of Plots Nos.200-A/1, Sector E-3 Part I, measuring 5 Marlas, I1-E, E-2 measuring 10 Marlas, 142-B, E3, measuring 10 Marlas, 114-1, F-I, measuring one Kanal, 200-A/2, E-3, measuring 40' x 36', 51-FG, E-2, measuring 271 sq.Ft, 69-A, C-3 measuring 23' x 74', 4-A, E-1, measuring 40' x 50', 4-B, E-1, measuring 45' x 50', 41-A, E-4, measuring 60' x 45', 197-A E-2, measuring 10 Marlas, 182-A, E-2 measuring 27' x 50' and No.20, E-3, Part I measuring 50' x 27', made on 9-1-1993, 15-11-1993, 25-10-1993, 20-10-1993, 7-11-1993, 20-10-1993, 30-12-1993, 20-11-1993, 18-11-1993, 12-10- 1993, 20-5-1993, 15-11-1993 and 20-2-1994 in favour of petitioner Haji Abdullah (Petition No. 35/94), proforma-- respondent No.7 (Petition No.49/94), respondent No.7 (Petition No.50/94), petitioners, Mst. Rehana Mahmood, Maula Bakhsh, Jan Muhammad, Farman Ali (Petition No.53/94), Muhammad Iqbal (Petition No.61/94, Anwaar Ahmed (Petition No.63/94), proforma-respondent No.7 (Petition No.67/94, proforma---respondent No.8 (Petition No.79/94), proforma-respondent No.7 (Petition No.84/94 and Karamat Ali, petitioner (Petition No.94/94) respectively. The Government of Azad Jammu and Kashmir vide its Notification No.Admn/Enquiry/H-II(109)/I/94, cancelled the allotments of plots made during the period from 5-1-1993 to 31-12-1993, on February 20, 1994 which included the allotments under discussion, which are the subject of challenge through these writ petitions.
6. Before adverting to the other points in controversy, it seems appropriate to judge the legal position of the allotments on the strength the present petitions have been filed. All the allotments under discussion were made by the Chairman/Mayor, Municipal Committee/Corporation, on the dates mentioned above as is evident from the record produced by the parties and the original record maintained by the Municipal Corporation which was summoned by me for my own satisfaction and marked by me as C/1 to C/13. It may also be clarified that some of the allotments in the allotment orders are shown to have been made by the Allotment Committee which is also noticed against the record as none of the allotments has been made by the Allotment Committee but by the Chairman alone in his own discretion.
7. The allotment in the area placed under the jurisdiction of the Municipal Corporation, Mirpur, is governed by the Regulations called as Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates Rules, 1985 (hereinafter called as the Municipal Regulations). The disposal of the plots is regulated by rule 6 of the Regulations which provides allotment (i) after inviting the applications from the persons; (ii) by public auction; (iii) and by lease for a fixed term of years. The procedure provided for the disposal of the plots through the allotments is given in Rules Nos.7 and 8 while Rule 9 of the Regulations provides the order of preference for applicants and shares of the plots of different categories including the reservation of special quota for the Prime Minister. Rule 16 of the Regulations provides for the regularisation of the encroachments by the Chairman/Mayor, Municipal Committee/Corporation as against other allotments mentioned above by the Committee. The relevant rules governing the allotment and regularisation of the encroachments are usefully reproduced below:--- Notice inviting applications for allotments. ---(I) Whenever the plots/farms are to be disposed of through allotment, a notice giving sufficient particulars of plots/farms inviting applications within a specified period shall be issued by the Committee, and given wide publicity, such period may be extended by the Committee.
(2) The Committee may prescribe application forms obtainable on payment of Rs. 10 from the office of the Committee.
(3) The Committee may issue a broacher giving details/sizes of plots/farms, prices, premium, rental details etc. And other terms and conditions of allotment.
8. Procedure for allotment.---(1)(a) On receipt of applications a list shall sbe prepared and affixed on notice board.
(b) The Committee shall cause scrutiny of these applications to eliminate non-deserving applications and to determine the priority wise category to which a particular applicant belongs.
List of those applications, category-wise will be prepared and placed on notice board. The list of non-deserving applications, with reasons for rejection shall be notified.
(c) After scrutining the eligible applicants shall be given plots by drawing of lots in proportion approved vide Regulation 9(2).
(d) eligibility for applying for allotment of plots
(i) applicant must belong to any of the categories given in Regulation 9(2) of those Regulations; (ii)applicant must be major/independent;
(iii) applicant or head of his family have not been allotted any residential or commercial plot of more than 5 Marlas as the case may be, in Mirpur Town or Hamlets including those disposed of;
(iv) for residential plots, the applicant or head of the family or any of his dependant have not been allotted any residential WAPDA quarter/bungallow.
(2) The proceddre laid down in Rule 8, sub-rule (1), clauses (a) to (d), (i) to (iv) shall not be applicable in case of allotment/regularisation of the awkward land and the Chairman of the Committee shall be empowered for the disposal of such case on its merits
16. Regularisation of encroachments etc: The Chairman may regularize the encroachments subject to the provision of Master Plan and Local Government Ordinance on any piece of Government land/rejected areas in prescribed manner; provided that:---
(i) The person who has encroached upon the Government land or rejected area, falls in criteria under clause 9(2) above;
(ii) the encroachment does not affect the Master Plan/Original Planning.
(iii) The encroachment may not affect any road, plot or areas reserved for Government buildings, like Hospitals, Schools, Dispensaries, or any other public institution or areas reserved for disposal works sewer of water supply lines, etc.
(iv) the encroachment which has been effected prior to 30-6-1981 and the same is sufficiently approved by the official records;
(v) the encroachment is by no means against the approved housing scheme sand more than one Kanal."
8. A critical analysis of the provisions reproduced above reveals that except Rule 16 of the Municipal Regulations, there is no other provision provided for the allotment or regularization of the allotment to be made by the Chairman/Mayor, Municipal Committee/Corporation alone in the above capacity. All the abovementioned allotments were made by the Chairman, Municipal Committee/Corporation, Mirpur. As the allotments in question were not made under rule 8 of the Regulations and were regularized under rule 1'6 mentioned above, therefore, it is essentially to see whether the requirements of this special rule were satisfied. Among the mandatory requirements, the applicant has encroached upon the Government land or rejected area not affecting the original Master Plan or any road or plot, or area reserved for Government buildings etc., the encroachment has been effected prior to June 30, 1981 and is so substantiated by official record. It may be stated that none the requirements mentioned in the rule, has been satisfied in regularization of the plots. As the above plots were not in possession of the applicant-petitioners before June 30, 1981, therefore, their allotment or regularization on the basis of encroachment or possession is contrary to law. It may also be mentioned that the other requirements mentioned in the rule are also lacking, as such the allotments are held to be illegal and without jurisdiction.
Reference may be made to the case titled Muhammad Qurban v. Mayor, Municipal Corporation and others 1995 CLC 1276 decided by this Court. Relianpe is also placed on the case titled "Maqsood Hussain v. Chairman, Municipal Committee and others, decided by the Supreme Court of Azad Jammu and Kashmir, in 1992 CLC 2203.
9. Next, it was argued by the learned counsel for the petitioners that the Government of Azad Jammu and Kashmir had no lawful authority to cancel the allotments as, according to them, neither the Local Government Act nor the Municipal Regulations empowered the Government to exercise the above power. The learned counsel for the opposite side, referred to sections 61, 74, 76 and 77 of the Local Government Act, in support of their assertions. A survey of the provisions referred to by the learned counsel for the respondents does not indicate the position claimed by them as section 61 of the above Act relates to powers of the Municipal Committee while section 74 deals with the supervision of the Government over the Local Councils and section 76 pertains to the power of the Government to give directions to the Local Councils. Therefore, after perusal of the entire Local Government Act and Municipal Regulations, it can safely be resolved that there is no specific power vested in the Government which may be exercised for the cancellation of the plots.
Toclarify it, reference to section 48-A of the Mirpur Development Authority Act, 1974, can be made.
Similarly, the previous Allotment of Land Committee Act, 1964, had a specific provision for the purpose.
10. Now, the question arises as to whether in the circumstances mentioned above, the petitioners are entitled to any relief by maintaining the present writ petitions. 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 fide and he comes to the Court with clean hands and for enforcement of a legal right obtained by him in a lawful manner.
The remedy under the 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. Where the Court has power to issue a writ, it will not do so if to grant the writ works injustice in broad sense. Reliance in this regard is placed on PLD 1992 SC (AJ&K) 49 (Bashir Ahmed Khan v, Custodian of Evacuee Property and another', wherein it was held:--- "---S. 44---Costitutional jurisdiction could not be exercised in aid of perpetuation of injustice or to protect ill-gotten gain by a person---Party seeking relief by invoking Constitutional jurisdiction, must show that it had come with clean hands and had a tangible right, if not a purely legal right, which had been violated."
11. In another case titled ' Wali Muhammad and others v. Sakhi Muhammad and others' PLD 1974 SC 106, it was observed by the Supreme Court of Pakistan as under:--- "--Grant of relief in writ jurisdiction being entirely discretionary with the High Court, the Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of the Tribunal below was not strictly found justifiable. It is well-settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains."
12. The proposition also came under consideration before the Supreme Court of Pakistan in a case titled Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236, wherein it was laid down: ----It is now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action 'beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognises a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful ----------- An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, 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 the extraordinary jurisdiction ought not to be allowed to be invoked.
Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jurisdiction."
13. The point also came under discussion before the Lahore High Court in a case titled ' Mst. Ghulam Fatima and another v. Border Area Allotment Committee and others' 1982 CLC 2217 and it was resolved in the following words:--- --- Art. 199---Discretionary relief under Constitutional jurisdiction, held, can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner---Constitutional remedy---Cannot be allowed to be availed of by a person wishing perpetuation of an illegal act even if passed without jurisdiction."
14. Relying upon the aforesaid authorities discussed above in the background of nature of the order of allotment by an authority having no jurisdiction and as such holding the order as ' void ab initio', it is safely concluded that the petitioners are not entitled to any relief which may amount to perpetuate the injustice.
15. The objection of the petitioners for having not been given any notice before the cancellation of their plots, merits no consideration in the light of the observation made with regard to the nature of allotment, as a void order or an order without jurisdiction creates no right. There is no gain saying that the rule embodied in the maxim, "audi alteram partem" is well entrenched in our system of law but for earning a right of hearing, a person must show that he was deprived of some right vested in him. It is well settled that an order without jurisdiction does not entitle any one to claim hearing.
Reference may be made to 1983 CLC 219. Reliance is also placed on the case titled ' Muhammad Rashid v. Azad Government and others' PLD 1987 SC (AJ&K) 60, wherein it was held: --- "---Void order--Recall of--Audi alteram partem---Principle of----Applicability of--Held: Void order or order without jurisdiction to create no vested right---Lease order of Minister found to be void----Held: Such order not to be capable of conferring any right on appellant to entitle him to claim hearing. "
15. In view of the above discussion, all the writ petitions are found to have no substance in them which are hereby dismissed.