' IFTIKHAR MUHAMMAD CHAUDHARY, J.---In instant petitions leave to appeal has been sought against the common judgment, dated January 20, 2000 passed by the High Court of Sindh, Bench at Sukkur in C.Ps. Nos.D-879 and D-880 of 1994.
2. Concisely stating facts of the case are that petitioners obtained lease-hold rights of temporary cultivation of Forest Land in an auction for a period of 5 years commencing from Kharif 1991 to Rabi 1996 vide letter, dated 6th May, 1991 issued by the office of the Divisional Forest Officer, Barrage, AFF Division, Mirpur Mathelo. It seems that bGudduefore commencement of the temporary lease petitioners managed to get extended the period of lease from 5 years to 30 years from the then Chief Minister. Accordingly vide letter, dated 26th June, 1991 approval of the Chief Minister was conveyed to the Secretary, Government of. Sindh, Forest, Fisheries and Livestock Department, Karachi. For convenience extension clause of the temporary leases is reproduced here in below:-- "EXTENSION CLAUSE"
' The Chief Minister of Sindh has been pleased to convert the lease period in respect of "Five Years Agro-Foresty Cultivation Lease in Mahero Forest in compartments Nos.237, 238, 239 and 264 over an area of 100.0 acres commencing from Rabi 1992-93 to Kharif 1996 (ending 31-12-1996) granted to Mr. Mahboob Ali Indher for thirty years i,e, from Rabi 1992 to Kharif 2021 (ending 31-12-2021) on the usual terms and conditions with the following additional conditions:--
(1) For first 5 years already sanctioned at the rate of Rs,203 per acre per year as already decided.
(2) After five years i,e, from sixth year and onwards the lease money may be recovered at the increased rate of 10% after every five years.
' The above conversion had been granted by the Chief Minister of Sindh as per endorsement of summary submitted by Secretary to Government of Sundh Forest, fisheries and Livestock Department which read as under:-- ' Please grant the said lease on lease for thirty years by including it in schedule by relaxing rules as Special Case.'
' Received vide Chief Conservator of Forests, Sindh, Hyderabad's endorsement No,C.XVI-MM/1211, dated 12-11-1991."
3. It is stated that on 29th September, 1994 petitioners were informed that 5-year Agro Forestry Cultivation Lease granted in their favour commencing from Kharif 1991 to Rabi 1995-96 being illegal, ab initio, incompetent and without authority is cancelled by the Chief Conservator of Forest, Hyderabad, Sindh. Thus, they were requested to hand over the charge of the above leased area to the authorities under proper charge certificate.
4. Aforesaid letter of cancellation of forest leases was challenged by petitioners before the High Court of Sindh Bench at Sukkar by filing Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan. However, the petitions have been dismissed by impugned judgment.
5. Learned counsel Mr. Ibrar Hasan contended that initially the land on lease through auction was leased out to petitioners under Martial Law Order 60 read with 69 of the Province of Sindh for a period of 5 years by the competent Authority but thereafter the period of lease was extended by the Chief Minister for a period of 30 years in exercise of the powers conferred upon him under the Government of Sindh Rules of Business, 1966 read with West Pakistan Delegation of Powers under the Financial Rules and the Powers of Re-appropriation Rules, 1962, therefore, extension of the leases for a period of 30 years was legal and with lawful authority but the Division Bench of High Court of Sindh has wrongly construed that the Chief Minister is not competent but the Governor being head of the executive authority enjoys all the jurisdiction in this behalf. He further stated that effect of the judgement reported in PLD 1978 Karachi 807 was not considered to determine the executive authority of the Chief Minister of the Province. In our opinion there is no necessity to go into the controversy concerning the executive authority of the Governor and Chief Minister as has been raised by the learned counsel for the petitioners because contention put forth by him can be dealt with keeping in view the provisions of Martial Law Order 60 (Land Lease Order), dated 2nd May, 1978 promulgated by Martial Law Administrator, Zone C. Paragraph 7 of Part II of the said Order being relevant is reproduced here in a below:-- "7.--(1) No lease of land shall be granted except by public auction: ' Provided that the authority to whom land belongs may with the approval of Governor grant the lease on payment of lease money determined by the said authority in accordance with the relevant law:--
(a) to any department or institution of the Federal or any Provincial Government;
(b) to any association or individual for establishing, maintaining or extending educational, religious or charitable institution for the benefit of the public;
(c) to a landholder for adding to his holding or alignment if such land is adjacent to his existing plot and does not exceed 40 square yards.
(2) No temporary lease (Katcha Patta) of land shall be granted:-- ' Provided that the temporary lease granted before 6th April, 1978 may be converted into lease for the period specified in para 9 at the current market rate if such land is not required by the Local Council or Government for amenity purpose.
(3) The land leased under this Order shall be used for the sole purpose for which it is granted failing which the lease shall be liable to be cancelled and the land together with structure thereon be resumed without any compensation."
6. Perusal of above provision indicates that lease of land ought to have been given by public auction after following the procedure laid down therein. At this stage reference to para 9 of this Part is also important which fixes a maximum period of lease granted under this Order in the case of agricultural land as 3 years and in other cases ninety-nine years. Thus, in view of the arguments put-forth by petitioner's counsel the competent Authority was not authorised to grant initially lease for more than a period of three years for agricultural purposes. As such the said authority including the Chief Minister under the said scheme of law had no lawful authority to extend the period up to thirty years, that too, without auction.
7. Learned counsel alternatively had also argued that under the West Pakistan Delegation of Powers under the Financial Rules and Re-appropriation Rules, 1962 Chief Minister is competent to extend the lease from 5 years to 30 years. We are not inclined to agree with his this contention as well because as per Item 7 of the Schedule Columns (ii) and (iii) of Rules of Business Conservator of Forest and Divisional Forest Officers are competent to grant lease of the Forest property by auction of tender up to 5 years for irrigated lands and for 15 years for Barani land etc. Therefore, even under this provision of law the Chief Minister had no authority to extend the period of 3 years. Therefore, the grant of temporary lease in favour of petitioners was ab initio without lawful authority and jurisdiction. As such, the concerned authority acting contrary to the above quoted laws arbitrarily granted extension of 30 years to the petitioners.
8. Learned counsel also argued that after adding extension clause in the original agreement the concerned authorities of the Forest Department i,e, Divisional Forest Officer etc. Had no jurisdiction to cancel the lease in view of the principles of locus poenitentiae. In support of his contention he placed reliance on PLD 1969 SC 407. As it has been observed here in above that grant of temporary lease in favour of the p -nods for a period of 5 years and then extension for a period of 30 years was ab initio without lawful authority and jurisdiction in view of Part II of Martial Law 'Order 60, therefore, the authority of Forest Department who had added the extension clause in the lease in exercise of jurisdiction under section 21 of the General Clauses Act, 1897 was always competent to rescind the order which was operating in favour of the petitioners. We are also of the opinion that judgment cited by the learned counsel i,e, Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Farukhi (PLD 1969 SC 407) would not be helpful to him because in this very case it has been held as under:-- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae i,e, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance, therefor, certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
' Careful perusal of the above observation reveals that the relevant authorities always enjoy powers to retrace the wrong steps taken by them. In another case reported in PLD 1992 SC 207 (The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin) this Court has observed that principle of locus poenitentiae was invoked by the trial Tribunal in aid of the respondent. Having gone through the facts of the case we have come to the conclusion that this principle is not attracted in the present case. It was held that under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order.
9. As it has been observed hereinabove that extension of 30 years' lease of the Forestry was allowed by the Chief Minster contrary to the relevant law, therefore, the competent Authority had the jurisdiction to rescind the order of extension operating in favour of petitioners.
10. Learned counsel also contended that no notice was given to the petitioners before cancelling the lease vide order, dated 29th September, 1994 and the petitioners who have made huge investment to develop the land have been condemned unheard, as such on this score as well the action of official respondents deserves to be declared without lawful authority. There is no cavil with the proposition that the principle of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in the statute and even if there is no such specific or express provisions, it would be deemed to be one of the parts of the State because no adverse action can be taken against a person without providing right of hearing to him. But at the same time this principle cannot be deemed to be of universal nature because before invoking/ applying this principle one has to specify that the person against whom action is contemplated to be taken prima facie has a vested F right to defend the action and in those cases where the claimant has no basis or entitlement in his favour he would not be entitled for protection of the principle of natural justice. To support this argument reliance is placed on the case of Ghulam Mustafa Jatoi v.
Additional District and Sessions Judge/ Returning Officer, N.A. 158 Naushero Feroze and others (1994 SCMR 1299). Relevant para for convenience is reproduced here in below :-- "21. The reason seems to be that subsection (5) of section 14 of the Act confers a right on a candidate to file an appeal against the decision of the Returning Officer inter alia against the rejection or acceptance of the nomination papers which is to be heard by a Tribunal comprising not less than two nor more than three Judges of a High Court. In the present case, the appellant could not have filed the above appeal against the rejection of his nomination papers as under the above notification, dated 23-8-1993, the last date of filing of appeal against rejection or acceptance of nomination papers was 5-9-1993, whereas the last date for deciding the appeal by the Tribunal fixed was 12-9-1993. The appellant's name was dropped from the published list of the candidates on 14-9-1993 as stated here in above without any notice to him on a ground which was not agitated earlier, which order was violative of the principle of natural justice as enunciated by this Court inter alia in the following cases:--
(i) Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45);
(ii) Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and others (PLD 1961 SC 537);
(iii) Commissioner of Income-tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410);
(iv) The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed (PLD 1965 SC 90);
(v) Abdus. Saboor Khan v. Karachi University and another (PLD 1966 SC 536);
(vi) Abdul Wadud Khan v. Chief Land Commissioner etc. (PLD 1983 SC 183);
(vii) Sultan Muhammad and others v. Chairman, Federal Land Commission, Islamabad and others (1990 SCMR 1364); (viii)Lilaram v. Ghulam Ali alias Essa through Legal Heirs and others (1991 SCMR 932);
(ix) Makerwal Collieries Ltd. And 2 others v. Government of N.W.F.P. And 11 others (1993 SCMR 1140).
' In all the above cases it has been held that in the absence of express exclusion for cogent reasons, principles of audi alteram partem is to be read into the relevant provision if the action is going to affect any vested right of a person."
It may be noted that his Lordship Mr. Justice Ajmal Mian (as he then was) has concluded that principle of "audi alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person. Further, adding to these reasons we would observe that if this rider is not placed for applying the principle of "audi alteram partem" then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is also to be noted that it is high time to ensure that transaction between the individuals vis-a-vis the State are just, fair, open, honest and transparent. Therefore, action of individuals which is not honest and based on mala fides may not be allowed to exist merely for the reason that the principle of natural justice was violated. As in the instant case initially petitioners obtained a temporary lease of Forest through auction for a period of 5 years and immediately thereafter successfully made an attempt to get the period of lease extended by 30 years without auctioning the land after the expiry of period of 5 years in terms of Part II of the Martial Law Order 60 or under West Pakistan Delegation of Powers under Financial Rules because we are of the opinion that if for such long period the lease of the Forestry is auctioned it would have fetched high auction price for the Forest Department. But to deprive the State petitioners anyhow managed extension of lease in their favour through good offices of Chief Minister illegally. Therefore, such deeds on the part of the petitioners or the authority who granted the sanction cannot be allowed to exit on the strength of argument of the learned counsel for the petitioners that action against the petitioners have been taken in violation of principles of natural justice.
11. We are also inclined to observe that in view of the circumstances of the case learned Division Bench of High Court of Sindh at Sukkur had rightly declined to grant discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan because jurisdiction conferred upon the Court under this Article of the Constitution cannot be exercised to perpetuate ill-gotten gains as it has been held in the PLD 1973 SC 230 (Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others), Market Committee, Multan through its Administrator and another v.
Muhammad Sabir (1995 SCMR 305) and Khiali Khan v. Haji Nazir and 4 others (PLD 1997 SC 304).
Relevant paras from this judgment are reproduced hereinbelow :-- "8. In the same manner, in the instant case, if the High Court, in its extraordinary jurisdiction under Article 199 of the Constitution of 1973, came to the conclusion that the orders of respondents Nos.4 and 5 cancelling the impugned mutation were illegal and without jurisdiction, and those of respondent No,3 justifiable particularly on the ground of the conduct of the petitioner himself to have sold the land to respondent No,1 and then attempting to take ill-gotten gain, it could legitimately refuse to set aside the orders of respondent No,3, even though the latter was clearly without jurisdiction. We are, however, convinced that the orders passed by respondent No,3 were not shown in any manner to be violative of paragraph 24 of the Regulation. In this contention reference may be made to Settlement Authority and others v. Mst. Akhtar Sultana (PLD 1976 SC 410), wherein a Full Bench of this Court upheld the principle that where an authority of exclusive jurisdiction has taken certain act, which is well within its competence, the High Court should be slow to interfere with the act of such authority, and, therefore, should not have interfered with the auction held under orders of the Central Government.
' Another principle in the realm of writ jurisdiction well-entrenched in our system as elsewhere is that a void order is not always to be stuck down regardless of the consequences of such a decision, but that a void order shall be stuck down provided there is no statute or principle of law which would make it unjust or inequitable to strike it down. In S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, this clarification was termed as very important and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute. Similarly in Ghulam Mohi-ud-Din v.
Chief Settlement Commissioner and others PLD 1974 SC 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches."
' In view of above discussion we see no force in these petitions which are accordingly dismissed and leave to appeal is refused.
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