MUHAMMAD YUNUS SURAKHVI, J---The above titled three appeals, with the leave of the Court are directed against a consolidated judgment of the High Court passed on May 18, 1996, whereby the writ petitions filed by the appellants herein were dismissed. All the three appeals raise identical questions of law and facts as such are being disposed of by this single judgment.
2. The precise facts, giving rise to the present appeals, are that in new Mirpur Town numerous allotments were made by the Chairman Municipal Committee Mayor Municipal Corporation Mirpur during the period commencing from 5th of January, 1993 to 31st of December, 1993. The allotments of plots made in the name of appellants also fall within the abovementioned period. The Azad Government of the Sate of Jammu and Kashmir, respondent No. 1, on the basis of general complaints of illegalities and irregularities committed in the allotments constituted a Commission of inquiry for making a probe into the alleged illegalities which after enquiry arrived at a conclusion that the allotments during the said period were made illegally as such could not be sustained. The Government, in consequence, cancelled the allotments made from January 5, 1993 to December 31, 1993, through a Notification No Admn/Enquiry/H-11 (109)1 /94 issued on February 20, 1994, including the allotments of the appellants. The vires of the above notification and the cancellation of allotments were challenged through Constitutional petitions filed by the appellants in the High Court which were dismissed vide the order impugned dated 18-5-1996, which is the subject-matter of present appeals.
3. A learned Judge in the High Court dismissed the writ petitions filed by the appellants mainly on the following grounds:-- "(i) that the allotments were invariably made by the Chairman Municipal Committee/Mayor Municipal Corporation who had no jurisdictional competence to make the allotments as the same were not visulaized by Azad Jammu and Kashmir Local Government Act and the rules made thereunder including Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, Rules 1985. It was only the Allotment Committee which was vested with the jurisdiction to make or cancel the allotments;
(ii) that the appellants-petitioners did not come in the Court with clean hands and writs could not be issued in aid of injustice; and.
(iii) that the appellants were not entitled to claim their hearing at the time of cancellation of their allotments as the same were made without any jurisdiction and lawful authority."
4. Arguing the case on behalf of appellants M/s Muhammad Riaz Alam and Ch. Muhammad Yunus Arvi, the learned counsel have contended with vehemence that Government is not vested with any power to cancel the allotments made in favour of appellants and general public through a notification. According to the learned counsel the Local Government Act and the rules made thereunder including the Mirpur Municipal Committee/Corporation Regulations for Development and Disposal of Plots/Estates Rules 1985, (hereinafter to be referred as the Municipal Regulations) do not empower the Government to cancel the plots enmasse. It has also been argued that the factum of allotments having been made in the name of appellants and deposit of the prices made by them has been admitted by the respondents in their written statements thus they are precluded from taking the inconsistent stand that the allotments made in the name of appellants were either void or without jurisdiction. The learned counsel have further strenuously contended that it is only the Allotment Committee which could allot, cancel or lease out the plots and not the Government.
It has been further argued that the High Court has committed a gave illegality by observing that the appellants did not come in the Court with clean hands as no such plea was raised by the respondents in their written statements. The learned counsel have also maintained that the appellants at the time of cancellation of their allotments were not provided with an opportunity-.Of hearing and as such the principle of audi alteram partem was violated since a vested right had accrued to them on the basis of allotments made in their favour and by making the deposit of the prices of plots.
5. Controverting the arguments raised by the learned counsel for the appellants, it was contended by Mr. Liaqat A.I Khan, the learned counsel for respondents, that the Government was fully vested with the jurisdiction to cancel the allotments made by any authority if the same were either illegal or without any jurisdiction as provided under section 77 of the Local Government Act. The learned counsel submitted that the impugned allotments in favour of appellants were made by Chairman Municipal Committee/Mayor Municipal Corporation who was not vested with any jurisdiction whatsoever to make the same. It was further contended by the learned counsel that the appellants challenged the legality of impugned notification through their writ petitions in the High Court but they could not substantiate their claim as no legal or valid defect was pointed out in the said notification. The learned counsel argued that the appellants nowhere averred in their writ petitions that their allotments were either genuine or made in accordance with law or within the vires of the relevant rules as such the mere fact that the factum of allotments was admitted in the written statement would practically make no difference as for as the fate of their allotments is concerned.
The learned counsel argued that as the allotments were made in the name of appellants in derogation of the relevant law and rules so they were not entitled to any relief by invoking the Constitutional jurisdiction of the High Court and it committed no illegality in refusing to issue writs in their favour.
6. Kh. Attaullah and Ch. Muhammad Mushtaq, the Additional Advocate Generals fully supported and endorsed the contentions raised by Mr. Liaqat A.I Khan.
7. We have given our due consideration to the arguments raised at the Bar and perused the relevant record. At the very outset it may be pointed out that main plank of attack made by the learned counsel for the appellants on the impugned judgment of the High Court is that the factum of allotment having been made in the name of appellants has been admitted by respondents in their written statements as such they are precluded from raising any objection with regard to the legality of allotments. After careful consideration of the contention raised by the learned counsel for the appellants, we have reached the conclusion that the argument having no substance in it merits no consideration. The appellants-petitioners nowhere averred in their writ petitions that the allotments made in their names were either genuine or in accordance with the relevant law and rules and were made by the competent Authority, having a legal sanction behind them. It was simply averred by the appellants that plots were allotted in their names and they deposited the prices of the same. The mere fact that respondents in their written statements have admitted the relevant para. Of the writ petition to be correct, practically makes no difference so far as the fate of their case is concerned. It were the appellants who challenged the vires of the impugned notification on the basis of which the allotments of certain period including those of appellants were cancelled but they failed to point out any defect or illegality in the impugned notification.
Thus, the contention raised by the learned counsel for the appellants, being devoid of any legal force is hereby repelled.
8. It has been resolved by the High Court that the allotments made in the name of appellants were made by Chairman Municipal Committee/Mayor Municipal Corporation alone in his capacity as such who does not figure anywhere in the relevant law and rules or regulations and is not vested with any jurisdiction to make the impugned allotments. The Chairman Municipal Committee/Mayor Municipal Corporation as provided under section 16 of Mirpur Municipal Regulations may regularise 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 the following conditions are satisfied:-
(i) The person who has encroached upon the Government land or rejected area falls in criteria under clause (9) (ii) 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 institutions or areas reserved for disposal works sewerage of water supply lines, etc.; (iv). The encroachment which has been affected prior to 30-6-1981 and the same is sufficiently proved by the official record; and (v). That the encroachment is by no means against the approved Housing Scheme and more than one Kanal.
The abovementioned rule 16 is the only provision which empowers the Chairman Municipal Committee/Mayor Municipal Corporation to regualrise the allotments provided the conditions mentioned in the provisions are satisfied. It seems to be no case of the appellants that their allotments were regualrised by the Chairman/Mayor Municipal Corporation on the basis of encroachments having been effected by them prior to June 30, 1981, and the same stand sufficiently proved by the official record. Even this point was neither argued before the High Court nor at the time of appeal before us. As said earlier on the basis of inquiry report submitted by the inquiry Commission it was opined by the High Court that the impugned allotments were made by the Chairman Municipal Committee/Mayor Municipal Corporation in favour of appellants in derogation of the relevant law and rules who was not vested with any jurisdiction to make the allotments. The learned counsel for the appellants neither raised nor argued the point with regard to the genuineness of their allotments as such we are inclined to concur with the view expressed by the High Court that the allotments made in favour of appellants were made by an authority which was legally not competent.
9. It was argued before the High Court by the learned counsel for the respondents that the Government was vested with the power to cause an inquiry to be made into the affairs of a local council generally or into any particular matter concerning a local council and take such remedial measures as may be warranted by the findings of such inquiry. Even a particular reference to section 77 of the Local Government Act was made by the learned counsel for the respondents in the High Court but despite that the High Court observed as under:-- "Therefore after perusal of 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."
The High Court also went on to observe that in Mirpur Development Authority Act, 1974 there is a specific provision in the shape of section 48-A of the said Act, similarly the allotment of Land Committee Act, 1964, had a specific provision for the said purpose, giving an impression that the Local Government Act of 1990 had no such provision, empowering the Government in cancelling the allotments in certain eventualities. It was contended before us by the learned counsel the Government is vested with vast powers to take such remedial measures including the cancellation of allotments as may be warranted by the findings of an inquiry. In our view section 77 of the Local Government Act, 1990 deals with such an eventuality which may usefully be reproduce below.
"The Government may either suo motu, or on application made to it by any person, cause an inquiry to be make by such officer as may be authorised by it in this behalf into affairs of local council generally or into any particular matter concerning local council and take such remedical measures as may be warranted by findings of such inquiries."
The abovestated provision in our view fully empowers the Government to take such remedial measures including cancellation of allotments which is certainly one of the remedial measures as it may deem fit and proper.
10. Another contention of the learned counsel for the appellants that the High Court should have refrained from making the observation on its own accord that the appellants-petitioners did not come in the Court with clean hands as the same was not raised from opposite side also merits no consideration. The above observation was made in context with the relief claimed by the appellants with particular reference to the maintainability of their Constitutional petitions. It is a settled principle of law that a discretionary relief under the Constitutional jurisdiction of the High 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 enforcement of a legal right obtained by him in a lawful manner.
The allotments were obtained by the appellants through unlawful means by an authority having no jurisdiction so the remedy under the Constitutional provision could not be allowed to be availed of by a person who wants the perpetuation of injustice or retention of an ill-gotten gain. In a reported case titled Bashir Ahmad Khan v. Custodian of Evacuee Property and another (PLD 1992 SC (AJ&K)49) it was observed by this Court as under:-- "Section 44. Constitutional 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. "
The afore stated view also finds support from an illuminating judgment of Supreme Court of Pakistan in the reported case titled Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner and others' (PLD 1973 SC 236). In our considered view the allotments having been made illegally and without any lawful authority in favour of appellants created no tangible right in their favour seeking the Constitutional remedy and thus, the High Court committed no illegality in making the above observation.
11. In the last limb of his contentions the learned counsel for the appellants pressed into service the submission that at the time of cancellation of allotments from their names the appellants were not heard thus the principle of audi alterm partem which is of universal application was violated. It goes without saying that the aforesaid maxim 'audi altetm partem' has gained a great significance in our judicial system but 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 (as is before us) does not create any vested right, The orders of allotments in favour of appellants being without jurisdiction are not capable of conferring any right on the appellants to entitle them to claim hearing. Reliance is placed on a reported case of this Court titled Muhammad Rashid v. Azad Jammu and Kashmir Government and 20 others' (PLD 1987 SC (AJ&K) 60).
12. In the light of what has been stated above, finding no force in these appeals, the same are dismissed without any order as to the costs.