' MUHAMMAD YUNUS SURAKHVI, J.---The above captioned two appeals were filed against a consolidated judgment passed by the High Court on 18-10-1997, whereby the writ petitions Nos.74 of 1995 and 129 of 1995 were dismissed. As both these appeals raise common questions of law and facts so both of them shall be disposed of by this single judgment. Yet there is another application moved by Pervaiz Akhtar and another through their counsel, Ch. Muhammad Riaz Inqalabi, on the day we heard the arguments on the appeals for impleading them as party in the proceedings and arraying them in the line of respondents to which we will deal in the later part of the judgment.
2. 48' x 58'/2' x 80' The necessary facts, giving rise to the present appeals, are that plots Nos.122-F/1, measuring 60' x 80' and 122-0/I, measuring, Sector F-2 (Additional Scheme) were allotted to appellants by the Chairman Mirpur Development Authority on 11-7-1989 and 14-6-1989 respectively.
According to the appellants these allotments were assailed through writ petitions filed by different persons but the writ petitions were dismissed and against the dismissal order no appeal was filed.
The respondent Government, while exercising its powers under the M.D.A. Ordinance constituted a Revising Authority to scrutinise the allotments made commencing from the period 14-12-1988 to 8- 7-1990, on account of general complaints against the said allotments. The plots allotted in the names of appellants fall within the abovementioned span of period so the Revising Authority vide its order dated 26-3-1995, cancelled the allotments of aforesaid plots from the names of appellants along with other plots allotted during the above mentioned period mainly on the grounds that the plots having been located near the main water tank on the top roof of hillock used for common purposes wherein the planning of a public park is under process and on one side of the hillock a beautiful Sports Stadium is situated thus the hillock being of public utility was unable to bear the construction load which is likely to damage the water tank as such the allotments were found to be illegal and ultra vires of the relevant law and rules. The appellants feeling dissatisfied with the aforesaid order of the Revising Authority filed writ petitions in the High Court which were also dismissed by the High Court vide the impugned order dated 18-10-1997.
Hence these appeals by leave of the Court.
3. The High Court dismissed the writ petitions primarily on the following grounds:--
(i) that the previous writ petitions were not decided on merits. Those were dismissed either due to non-appending the allotment orders with the writ petitions or non-mentioning the relevant dates of allotments as such the rights of parties were not determined in any way. Thus the order of High Court dismissing the writ petitions neither created any estoppel nor res judicata;
(ii) that the Notification by which the Revising Authority was created does not limit its powers only to scrutinise those allotments which were made by the Allotment Committee and not by any other authority;
(iii) that as the allotments were made from additional scheme therefore the Chairman Mirpur Development Authority was not competent to prepare the Additional scheme even from any special quota;
(iv) that the plots were marked in the area reserved for common purposes even on this score the allotments were not warranted by law; and
(v) that the appellants do not have a vested right for allotment of plots in a particular area which is reserved for common purposes or can be more beneficial for common purposes particularly when they were given assurance that they will be allotted some other plots in lieu thereof.
4. Arguing the case on behalf of appellants, it was vehemently contended by Ch. Riaz Alam, that allotments in the names of appellants were made by the Chairman Mirpur Development Authority and not by the Allotment Committee of the M.D.A. And this has all along been the case of persons who in a previous round of litigation assailed their allotments. The learned counsel pressed into service the submission that in pursuance of Notification issued by the Government dated 3-12- 1992, the Revising Authority was constituted to scrutinise the impugned allotments which was competent only to scrutinise the allotments made by the Allotment Committee and not by the Chairman Mirpur Development Authority. The learned counsel submitted that the Chairman Mirpur Development Authority was delegated the powers of allotment under section 27 of the M.D.A.
Ordinance and as such he was competent to make the allotments and the Revising Authority acted beyond its jurisdiction to set at naught the allotments made by the Chairman M.D.A. The learned counsel also submitted that by coming into force the Notification of Government dated 3- 12-1992, the Notification dated 3-10-1992 lost all its force and for all practical purposes it was non- existent. The learned counsel also maintained that Chairman M.D.A. Under the delegation of powers was competent to do all the acts of allotments, preparation of additional schemes for allotments and to do all other acts vested in the Allotment Committee. It was further contended by the learned counsel; that the previous writ petitions filed by Pervaiz Akhtar, Muhammad Ayub and others were dismissed by the High Court as such any other litigation on the same cause of action was barred by the principle of res judicata and estoppel. The learned counsel strenuously argued that a valuable right had accrued to the allottees by making allotments in their favour but the same were cancelled without any cogent reason. The learned counsel for the appellants relied on the case Masjid Rehmanya v. Chairman M.D.A. And another [High Court Writ Petition No,18 of 1982 decided on 15-12-1982], and Riaz Ahmed v. Estate Officer M.D.A. And others [High Court Writ Petition No,13 of 1980, decided on 25-5-1982].
5. On the other hand Ch. Lal Hussain, the learned counsel for respondents, submitted that Chairman Mirpur Development Authority under law was not vested with any power to make the allotments or to prepare the additional scheme for allotments. According to him the Chairman M:D.A. Transgressed his powers by making the allotments in an illegal manner which were rightly cancelled by the Revising Authority at the time of their scrutiny. The learned counsel strenuously contended that by virtue of coming into force the Notification dated 3-12-1992, the Notification dated 3-10-1992, does not become redundant rather it held the field as the same was not superseded by the Notification dated 3-12:1992. Thus, according to the learned counsel, the relevant Notification to be looked into would be the Notification dated 3-12-1992, and not the Notification dated 3-12-1992. The learned counsel also submitted that the Revising Authority being an authority of exclusive jurisdiction reached the conclusion that allotments made by the Chairman M.D.A. Were nullity in the eye of law as such were liable to be set aside. The High Court in the exercise of its Constitutional jurisdiction should not have interfered in the sphere allotted to the authority of exclusive jurisdiction and it rightly did so, submitted the learned counsel. In support of his contentions the learned counsel relied on a reported case of this Court titled Ch. Abdul Khaliq, Chairman Welfare Society and another v. Muhammad Malik and 13 others (1997 CLC 442).
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record including the impugned judgment the moot point to resolved in the case is as to whether the Chairman Mirpur Development Authority (hereinafter to be referred as the Chairman) is vested with any jurisdiction to make allotments alone or not. The relevant provision of the Mirpur Development Authority Ordinance, 1974 referred by the learned counsel for the appellants is section 27 of the Ordinance which is reproduced below:- "27. Delegation of Powers to Chairman etc. ' The Authority may by general or special order, delegate to the Chairman, or a member or an officer of the Authority any of its powers, duties or functions under this Ordinance, subject to such conditions as it may think fit to impose."
The plain reading of this section provides that the Authority may delagate its powers, duties or functions to the Chairman or a member or an officer of the Authority. This section clearly deals with the powers of the Authority and its delegation to the Chairman or a member of an officer of the Authority. It does not deal with the delegation of powers of the Allotment Committee to the Chairman. The Allotment Committee under the M.D.A. Ordinance is created under subsection (4) of section 48 and its powers are provided under subsection (5) of the said section. Subsections (4) and (5) of section 48 of the M.D.A. Ordinance are reproduced below to have a correct perception of the matter:-
(1) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ***
(2) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(3) * * * * * * * * * * * * * * * *
(4) The Authority may consitute an Allotment Committee consisting of such number of members as may be determined with the approval of the Government.
(5) The Allotment Committee constituted under subsection (4) shall have all the powers of allotment exercisable by the Authority under the provisions of the Act or Rules or Regulations framed thereunder. The Allotment Committee may delegate its powers to Sub-Allotment Committee consisting of not less than three of its members."
' The aforesaid provisions postulate that the authority is vested with the power to constitute an Allotment Committee consisting of such number of members as may be determined with the approval of the Government. The Allotment Committee constituted by the Authority has all the powers of Allotment exercisable by the Authority under the provisions of the Act or the Rules or Regulations framed thereunder. The Allotment Committee may further delegate its powers to Sub- Allotment Committee consisting of not less than three of its members. This shows positively that the Allotment Committee cannot delegate its powers to the Chairman. The only Authority given to the Allotment Committee under Subsection (5) of section 48 of M.D.A. Ordinance, 1974, is to delegate its powers to Sub-Allotment Committee. Therefore the Chairman is not vested with any power of allotment. The learned counsel for the appellants relied on unreported judgment of the High Court titled Masjid Rehmanya v. Chairman M.D.A. And another (Writ Petition No,18/82 decided on 15-12-1982), wherein it was observed that Chairman Mirpur Development Authority has concurrent jurisdiction of allotment alongwith Allotment Committee and Mirpur Development Authority. In light of the view we have formed above this judgment stands over-ruled. The learned counsel also referred to unreported judgment of this Court titled Abdul Malik v. Chairman M.D.A.
And others [Civil Appeal No,61 of 1985, date of decision not ascertainable] and an unreported judgment of the High Court titled Riaz Ahmad v. Estate Officer M.D.A and others [Writ petition No,13/80 decided on 24-5-1982]. After going through the judgments we find that they are not relevant to the proposition in issue.
7. Now we turn to the argument of Ch. Riaz Alam that the Revising Authority could only revise the allotments made by the M.D.A. Or the Allotment Committee and not the allotments made by the Chairman M.D.A. The Chairman has defended the impugned allotments on the ground that he exercised powers of the Mirpur Development Authority which were delegated to him under section 27 of the M.D.A. Ordinance. It follows that the impugned allotments were made in exercise of powers conferred on the Mirpur Development Authority. Therefore the allotments made by the Chairman shall be deemed to be covered by the Notification by which Revising Authority was set up because the Chairman exercised the delegated powers of the Authority. Therefore it follows that the Revising Authority constituted under the aforesaid provision of law was empowered to scrutinise and pass suitable orders in respect of allotments made by the Allotment Committee or the Chairman as delegatee of the Authority. The impugned allotments in the instant case were made on 14-6-1989 and 11-7-1989, in favour of appellants. The Government vide Notification dated 3-10-1992 directed the Revising Authority to scrutinise the allotments made commencing from 14- 12-1988 to 8-7-1990 and to pass the suitable orders.
8. The contention raised by the learned counsel for the appellants that on the basis of Notification of the Government dated 3-12-1992, the Notification dated 3-10-1992 shall be deemed to be non- existent, has no merits for the reason that this Notification simply supersedes the Notification dated 25-9-1990 and not the Notification dated 3-10-1992. Be that as it may we have reached the conclusion that the Chairman of M.D.A. Was not vested with any of the powers of making allotments as such the allotment orders passed beyond any jurisdictional competence were rightly cancelled by the Revising Authority. Our aforesaid view is supported by a reported case of this Court titled Ch. Abdul Khaliq, Chairman Welfare Society and another v. Muhammad Malik and 13 others 1997 CLC 442, wherein it was observed at page 103 as under:- ' "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 i.e, the discretionary powers in writ jurisdiction cannot be exercised in order to perpetuate illegality or to protect ill-gotten gains."
9. Assuming for the sake of arguments that the Revising Authority was not competent to cancel the allotments made by the Chairman even then the order passed by the Revising Authority cancelling the allotments made by the Chairman could not have been set aside in exercise of writ jurisdiction by the High Court as the Revising Authority set at naught an illegal order passed by the Chairman.
It is well settled principle of law that writ jurisdiction cannot be exercised for perpetuation of an illegal order. In case reported as Raunaq Ali v. Chief Settlement Commissioner and others (PLD 1973 SC 236), it was observed at page 258 in a following manner:-- ' "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, then the extraordinary jurisdiction ought not to be allowed to be invoked."
' Again at page 259 of the report it was observed as under:- ' "In the same manner, in the instant cases, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioner verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the officer on Special Duty, even though the latter was clearly without jurisdiction."
10. An identical proposition was laid down in a case reported as Bashir Ahmad Khan v. Custodian of Evacuee Property, Muzaffarabad and another (PLD 1992 SC (AJK) 49). The following observation was recorded at page 52 of the report:- ' "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-gotten 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 . "
11. Another aspect of the case is that the additional scheme for making allotments in the present case was made by the Chairman in an area situated at the top roof of a hillock on the centre of which a water tank is located wherefrom the water is supplied to most of the area Mirpur Town. On the top roof of the hillock the scheme of a public park is also under the process of M.D.A. As pointed out by the Revising Authority and not denied by the appellants. In the days to come the population of Mirpur City is growing tremendously and in the near future there would be a dire need of the extension of a big water tank wherefrom the water would be supplied to the inhabitants of the Town. Such places which are used by public at large such as water tanks, gardens, public parks, graveyards and places of worship etc. Are not open to any allotment. Obviously making the allotments out of this area was even otherwise beyond the jurisdiction of the Chairman M.D.A. Or the Allotment Committee. Therefore the High Court and the Revising Authority in our view committed no illegality by setting aside the impugned allotments.
12. For the aforestated reasons, finding no force in these appeals, they stand dismissed with costs.
13. As far as the application moved by Pervaiz Akhtar and Muhammad Ayub for impleading them as respondents is concerned, in our view their grievance stands resolved as the impugned allotments, by dismissing the appeals have been cancelled. In this view of the matter the application filed by Pervaiz Akhtar and Muhammad Ayub stands dismissed.