MUHAMMAD YUNUS SURAKHVI, J.- This appeal, with the leave of the Court, has been fled to assail the correctness and legality of a judgment passed by the High Court on February 12, 1996, whereby the writ petition filed by respondents 1 to 8 was accepted.
2. The admitted facts, forming the background of the present appeal are that Plot No. 15-C of the size of 4 Kanals, 16 Marlas, 268 sq.Ft. Situate in Hamidpur Hamlet was allotted in the name of Eidgah of the residents of Hamidpur Hamlet through one Sufi Abdul Rehman on 20-12-1975 by the Allotment Committee headed by Ch. Suhbat A.I, the then Minister. The allotments made by the Committee headed by Ch. Suhbat A.I were declared illegal by the High Court on account of some technical defects and were cancelled by the Government through a notification No. Rabita- -77/MDA/14/1762-1774, dated 16-12-1980. The allotments cancelled through the above notification were regulated by a Special Regulation framed by the M.D.A, under section 47 of the M.D.A. Act, wherein it was provided that the allottees from whose names the allotments were cancelled shall apply afresh within the stipulated period provided for the purpose. It may be pointed out that under the above Regulation none applied for re-allotment of plots cancelled from the name of Eidgah. In the meantime in the area initially reserved for Eidgah five plots 7-A, 7-B, 15-A, 15-B and 15-C of the size of approximately 1 Kanal each situate in Hamidpur Hamlet, Tehsil Mirpur were marked and allotted to respondents 1 to 8 on April, 1990, by Chairman, Mirpur Development Authority. The possession of the respective plots, as claimed by the respondents was handed over to them.
However, the above allotments, alongwith other allotments, made during the period commencing from 14-12-1988 to 8-7-1990 were cancelled by a Government Notification issued under No.Rabita/1651--1751, dated 25-11-1990. The above notification was, however, withdrawn by the Government vide its subsequent Notification No. Works/1380-1480 dated 30-10-1992. Resultantly the allotments were restored. It was also provided in the subsequent notification that a Revising Authority shall be constituted to scrutinise the allotments, made during the abovementioned period. The allotments in dispute came under consideration of the Revising Authority which cancelled the same. The order of Revising Authority was challenged through a Constitutional petition by respondents 1 to 8 in the High Court and the High Court vide its order, dated February 12, 1996, impugned in the present appeal, declared the order passed by the Revising Authority as being without any lawful authority and restored the allotments in favour of respondents.
3. Arguing the case on behalf of appellants, Mian Muhammad Saeed, the learned counsel vehemently submitted that respondents in their writ petition did not implead the appellants and the residents of Hamidpur Hamlet as a party. They simply impleaded the residents of Hamidpur Hamlet, through one Sufi Abdul Rehman as a respondent who happens to be settled in England so naturally he was not in a position to appear and defend the case. The appellants being the residents of Hamidpur Hamlet and office-bearers of Welfare Society of Hamidpur Hamlet, were adversely affected by the order of the High Court so they were aggrieved by all means and as such they lodged the present appeal for redress of their grievance. According to the learned counsel since the allotments made in favour of respondents, were cancelled by a Government Notificati6n, dated November 25, 1990, and restored vide a subsequent notification, dated October 3, 1992, a Revising Authority was constituted to scrutinize the allotments made during the period from 14-12- 1988 to 8-7-1990 including the allotments made in favour of respondents. The Revising Authority, in accordance with the spirit of subsequent notification of the Government, dated 3-10-1992 restored the allotments in favour of residents of Hamidpur Hamlet, reserved for the purpose of Eidgah. The learned counsel pressed into service the submission that the allotments in favour of respondents were made by Chairman, M.D.A., who was not vested with any jurisdiction to allot the same. The learned counsel also maintained that the Revising Authority was fully vested with the jurisdiction to see into the legality and propriety of allotments and to give its finding. The learned counsel submitted that the places reserved for common purposes, such as Eidgah, public parks, graveyards etc. Could not have been allotted to the respondents or for that matter to any individual. The High Court according to the learned counsel committed a grave error by accepting the writ petition and declaring the allotments made in favour of respondents as genuine.
4. Controverting the arguments raised by the learned counsel for the appellants, Mr. Muhammad Yunus Arvi and Ch. Shaukat A.I, the learned counsel for respondents submitted that Revising Authority travelled beyond its jurisdiction to cancel the allotments from the names of respondents and to restore the same in favour of residents of Hamidpur Hamlet for the purpose of Eidgah.
According to the learned counsel it was clearly provided in the Government notification dated 16- 12-1980 that the previous allottees should re--apply for allotment but the same was not done by the appellants as such the restoration of allotment in favour of appellants was an unlawful act of Revising Authority which was declared so by the High Court. The learned counsel strenuously opposed the filing of appeal by the appellants as they had waived their right because Abdul Qayyum, one of the appellants, on a summons issued by the High Court for service of residents of Hamidpur Hamlet, put his signature as a witness. Thus, according to the learned counsel the filing of writ petition by the respondents was within the knowledge of at least one of the appellants, namely, Abdul Qayyum, who could have applied in the High Court for impleading him as a party.
Since the appellants failed to move the High Court in this regard, so they were estopped to lodge an appeal in the apex Court. The impugned judgment, according to the learned counsel for respondents, having been passed perfectly in accordance with law needs no interference by this Court. The learned counsel also maintained that the Revising Authority accepted the entitlement of respondents and observed that they may be allotted some other plots. .
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be stated that the High Court by accepting the writ petition, filed by respondents 1 to 8, mainly relied on the following points:-- "(i) that vide the order dated 20-12-1975, though the area under dispute was allotted for Eidgah by the Allotment Committee, headed by Ch. Suhbat A.I, but the same was declared illegal and under a notification of the Government, dated December 16, 1980, and Special Regulation it was enjoined upon the previous allottees to re-apply for the allotment but none of the allottees re-applied for allotment of plots reserved for Eidgah;
(ii) that the Revising Authority had no jurisdictional competence to cancel the allotments made in favour of respondents and to restore the allotment in the name of Eidgah; and
(iii) that the Revising Authority accepted the entitlement of respondents by suggesting that they may be allotted some other plots."
6. In order to have a grip over the matter requiring resolution by this Court it is deemed expedient to reproduce the exact relevant wording of notification of the Government, dated October 3, 1992, which reads as under:-- The plainreading of the above notification makes it abundantly clear that the powers of the Revising Authority were not limited only to see the legality or otherwise of the allotments but on the other hand it was empowered to scrutinize the allotments as well and to see their propriety. It is further recited in the notification that unless the Revising Authority, after scrutiny, declares the allotments as genuine, the allotment rights shall remain suspended. The Revising Authority under the aforesaid notification was vested with wide powers to determine the propriety of allotments as well. The Revising Authority after the scrutiny and hearing the parties arrived at a conclusion that allotments under reference should have remained reserved for the purpose of Eidgah. It is indeed correct that under the Special Regulation it was a condition prerequisite for the previous allottees to re-apply for the allotment but at the same time we cannot ignore this aspect that a place reserved for common purposes in 1975 and subsequently allotted to respondents in 1990, was not beyond the jurisdictional competence of the Revising Authority. As said earlier, the Revising Authority was vested with the jurisdiction to see the propriety of allotments made during the certain period and it formed the view that the area wherein subsequently the plots were marked and allotments were made should have remained reserved for the purpose of Eidgah. In our considered view it could have declared that the area reserved for the purpose of Eidgah may remain reserved for that purpose. As regards observation of the High Court that the entitlement of respondents/allottees has been accepted by the Revising Authority, factually appears to be incorrect. The Revising Authority clearly observed that the allottees may get the allotments at some otter place by establishing their entitlement. This observation with due deference to the High Court cannot be construed that the entitlement of allottees was accepted by the Revising Authority.
7. Both the learned counsel for respondents raised the objection that the appellants were not entitled to file the appeal in this Court as according to them " e even if they were aggrieved, one of the appellants, namely, Abdul Qayyum on a summon issued by the High Court for service of residents of Hamidpur Hamlet put his signature on its back side reporting that one Sufi Abdul Rehman who was representing the residents of the said Hamlet had settled in England and thus he having the knowledge of the writ petition should have applied in the High Court for impleading him as party. We have reached the conclusion that the argument is devoid of any legal force. Since both the appellants are residents of Hamidpur Hamlet so they were naturally adversely affected by the order passed by the High Court; thus 'being aggrieved, by the impugned judgment, they were competent to lodge the present appeal and it could not be said that they had waived theright to file the instant appeal.
8. The respondents, in our view, could not substantiate their claim that the area under dispute was not reserved for common purposes of an Eidgah of residents of the locality and even not an iota of material was brought on record in support of their claim. The High Court, thus, committed an error in accepting the writ petition. Keeping in view the peculiar facts and circumstances of the case, we have formed the view that the Revising Authority rightly reached the conclusion that the area reserved for Eidgah should remain reserved as such.
9. There is another aspect of the case which has been ignored by the High Court. Allotments in favour of respondents 1 to 8 were made by the Chairman of the Mirpur Development Authority as is evident from the allotment orders attached with the writ petition. It has been rightly contended by the learned counsel for the appellants that Chairman, Mirpur Development Authority has no power to make an allotment. This legal position stands settled by numerous judgments of this Court. In these circumstances the High Court should have in any case refused to issue a writ in favour of the said respondents in view of the principle that equitable relief that discretionary powers in writ jurisdiction cannot be exercised in order to perpetuate illegality or to protect ill-gotten gains.
10. The nutshell of the foregoing is that we accept this appeal and vacate the impugned judgment of the High Court by ordering the dismissal of writ petition filed by respondents 1 to 8, leaving the parties to bear their own costs.