' RANA BHAGWAN DAS, J.--- Through this Constitutional petition petitioner claiming to be in possession of a part of plot measuring 134-92 square yards from C.S. No,C-6/1-A and having been allotted the same by respondent-Sukkur Municipal Corporation seeks a declaration to the effect that the order, dated 8-8-1996 cancelling the lease in respect of Plot No,25-A by respondent No,3 i,e, Administrator, Municipal Corporation, Sukkur is illegal, void ab initio, coram non judice and without jurisdiction with a further declaration that she has a legal right to enjoy the lease granted to her. There is a further prayer for a restraint order against the said Municipal Corporation from granting lease of the said plot to anyone else till the decision of the petition.
2. As averred in the petition there is a big plot on rocks known as Military quarters bearing C.S. No,C-6/1-A which has been declared and notified as Katchi Abadi under the Sindh Katchi Abadi Act (II of 1987) (hereinafter referred to as Act, 1987). She applied for grant of a part of the plot on 99 years lease for construction of shops over the plot measuring 134-92 sq. Yards to the Chief Minister, Sindh through Federal Minister for Education. It is said that the Federal Minister sent her application to the Deputy Commissioner, Sukkur who after verification at site recommended allotment in her favour to respondent No,3 who on his part directed concerned officers for further verification. It is the case of the petitioner that her request was recommended by all quarters and she was provided the pro forma of a printed affidavit in Urdu which was submitted to respondent No,5 and finally on 9-7-1995 lease-deed was issued in her favour upon payment of lease money. After the mutation in City Survey record in her favour, she submitted an application for according sanction to construct a building which was duly approved vide order, dated 7-5-1996. While she was preparing for demolition of old structure and had purchased the material for new construction, when respondent No,1 cancelled the lease in her favour which act has been impugned through this petition on a number of grounds.
3. In the counter-affidavit filed by respondent No,3 on behalf of respondents Nos.2 to 5 it was pointed out that City Survey number C-6/1-A was not declared as Katchi Abadi. According to respondents original survey carried out by the United Surveyors of Rawalpindi in pursuance of para.3(e) of Martial Law Order No,67 (Zone "C") indicated that there existed City Survey number C- 6/1 and did not indicate any plot with No,25-A in the area of City Survey number C-6/1. This plot was subsequently, added by the then Deputy Director, Katchi Abadi to the list of Katchi Abadi without any lawful authority. Military quarters lying in this survey number were declared to be Katchi Abadi vide notification, dated 27th November, 1982. With reference to the averments made in the petition and the application made by the petitioner, it was urged that the property known as "Habib Musafirkhana" or "Habib Sarai" was a Municipal Property leased out to one Amanullah but tenancy rights of the said building were transferred to the petitioner on 28-7-1993. With regard to the lease obtained by the petitioner, it was pointed out that the same was obtained by fraud inasmuch as false affidavit was sworn by her on 4-7-1995 which to her knowledge was and in fact she knew that Plot No,25-A had not been included in the Katchi Abadis; that she knew that the structure standing on Plot No,25-A known as "Musafirkhana" was not her property and that it was the property of Municipal Corporation; that she swore a second affidavit on 9th July, 1995 in which she falsely claimed that she was in possession of this plot from the previous 15 years whereas tenancy of Habib Musafirkhana was transferred in her favour on 28-7-1993. She again claimed falsely that she was the owner of the house on Plot No,25-A and, thus, both these statements to the knowledge of the petitioner were false. With reference to photo-copy of affidavit, Annexure "D" to the memo. Of petition, it was pointed out that it was not a correct copy of the affidavit filed by her with respondent No,2 inasmuch as it did not disclose the number of years for which possession was claimed in para. 1 of the affidavit. In the copy of the affidavit placed on record by the respondents, petitioner had claimed her residence in the house for the previous 15 years. It was claimed that the fraud committed by the petitioner on the strength of manipulations and false statements was so committed under the garb of recommendations of high-ups and with the connivance of staff of Katchi Abadis, Sukkur Municipal Corporation who had been suspended and whose conduct was under investigation by Anti-Corruption Establishment. Averment with regard to recommendation by every official of the Corporation was seriously disputed and copies of the office noting placed on record do suggest the contrary.
4. Petitioner filed rejoinder to the counter-affidavit filed by the contesting respondents reiterating her statements and justifying the grant in her favour and impugning the cancellation of lease so granted.
5. At the hearing learned counsel for the petitioner contended with vehemence that the application made to the Chief Minister, Sindh was handed over by him to the Deputy Commissioner, Sukkur who after inspection of the site discussed the matter with the Federal Minister and that the latter desired that the plot be allotted to the petitioner. Learned counsel has conceded that Shop No,8 known as Habib Musafirkhana situated at Ghanta Ghar was op tenancy rights in occupation of the petitioner. He referred to the affidavit submitted by the petitioner in support of case before the Katchi Abadi Authorities and final allotment order, dated 9-7-1995 as well as Indenture of lease of plot by regularisation of unauthorised possession executed by Administrator, Sukkur Municipal Corporation on the same day in favour of the petitioner.
6. Act II, 1987 was enacted to make provision for the development and improvement of the areas of Katchi Abadis and regularisation of such Katchi Abadis and to establish Authority for the purpose.
In the interpretation clause "Katchi Abadi" has been defined to mean a Katchi Abadi, declared as such under this Act and includes the Katchi Abadi so declared under any law for the time being in force. Subsection (1) of section 19 of Act, 1987 postulates that subject to subsections (2), (3) and (4) and directions of Government, if any, the Authority may after such inquiry as deemed fit by notification in the Official Gazette declare any area or part thereof which is partially or wholly occupied unauthorisedly before the 23rd day of March, 1985 and continues to be occupied, to be a Katchi Abadi. A plain reference to this provision of law read with. Sections 20 and 21 of the Act, 1987 tends to show that after an inquiry Authority established under section 4 of the Act is required to declare any area or part thereof which is unauthorisedly occupied whether in whole or in part before the target date i,e, 23rd day of March, 1985 as Katchi Abadi by publishing a notification in the Official Gazette. This process is to be undertaken subject to the directions of the PrOvincial Government. It further appears that the Authority was created with a view to develop, improve or regularise all the Katchi Abadis in accordance with the provisions of the Act. It may be observed that the Katchi Abadts declared as such before the commencement of Act, 1987 shall continue to vest in the Council in which these are situated for the purpose of improvement, development or regularisation but Authority may at any time take over such Katchi Abadis, whereupon all rights and interests enjoyed, possessed or vested in the Council alongwith liabilities legally subsisting against the Council as may be determined by Government shall pass to the Authority. A number of schemes have been specified to be prepared or caused to be prepared by Katchi Abadis are enumerated in section 21 of the Act. When called upon as to whether the petitioner could be taken to be a person in unauthorised occupation of the area claimed by her before the target date, learned counsel was unable to make any statement whether in affirmative or in negative. This question was pertinent because in her initial application she claimed to be in possession of the house giving an impression that the construction had been raised by her and that the premises were in her occupation on tenancy rights for which she had been paying rent to the Municipal Corporation. Indeed the petitioner was not legally entitled to the allotment of the plot under the provisions of Act, 1987 as she was neither in unauthorised occupation of any area nor found as such before the cut-off date as a result of survey conducted by the staff of the Authority. In this view of the matter apparently we are of the view that the very act of allotment as well as the execution of lease in her favour was neither in accordance with the provisions of Act, 1987 nor under any other law for the time being in force. From the material placed on record it further appears that officials of the Katchi Abadis Authority acted in connivance with the petitioner and made collusive and fraudulent recommendations to justify the transfer of the plot in her favour without any factual or legal basis and justification. We are supported in taking this view from the office noting placed on record by the contesting respondents but it seems that the petitioner succeeded in achieving her object on account of oral orders of the political figures at the helm of affairs which can hardly be legally justified.
7. Learned counsel then seriously urged and protested that once the lease in respect of the plot was executed in favour of the petitioner the same could not be cancelled unilaterally more so without opportunity of hearing and a show-cause notice to her. Apparently the argument has an element of -attraction but in the peculiar facts and circumstances of the case in which the petitioner had succeeded in manipulating the issuance of allotment order on account of command performance by high-ups obviously due to political consideration is not entitled to the exercise of discretionary and equitable jurisdiction of this Court which is available for securing the ends of justice and to protect the fundamental rights available to a person under the Constitution or any other law for the time being in force. The foundation of the petitioner's claim being.
Inherently defective and based on political motives to the detriment of the public interest, she cannot invoke the equitable jurisdiction of this Court which is extraordinary in nature and never, exercised in aid of injustice. It may further be observed that the respondents having realised the defect and the legal infirmity in their action and after the introduction of system of accountability under Ehtesab Laws thought it fit and proper to retrace their steps which were inherently illegal and unwarranted by law. At best it may be said that act of cancellation of the allotment/lease may be vitiated for want of notice but it cannot be termed as altogether unlawful, without jurisdiction or of no legal effect. We may refer to the observations of the Supreme Court in Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 laying down the rule of law that 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 the discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the party. 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. Observations of Hamoodur Rahman, C.J. (as his Lordship then was) at page 259 of the report being illuminative and of paramount guidance may be reproduced for the sake of convenience.
"Acting on this principle, a writ of certiorari has been refused by the Courts in the following cases because to grant it would have had the effect of allowing the technicality of the law to cause unjust enrichment which was the policy of the law to avoid or would have resulted in the confirmation of a certificate obtained wrongly by suppressing material facts or would have sustained an order of allotment which the petitioner had obtained by suppression of material facts within his knowledge or would have resulted in perpetuating an injustice which had been done to the respondents by an incorrect order passed against them or would result in perpetuating a manifestly illegal order or would debar the taxing authorities from initiating proceedings because the requisite time for such initiation had expired."
8. This view was reaffirmed and followed in Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC 691.
9. In Chief Settlement Commissioner v. Muhammad Fazil Khan PLD 1975 SC 331 at p.345 of the report Honourable Supreme Court laid down a principle of law that while there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, Tribunal or Court on the general principle that fraud vitiates the solemn proceedings, and no party should be allowed to take advantage this fraud.
10. In so far as the exercise of extraordinary jurisdiction under the Constitutional authority, law is well-settled that it may be exercised in order to foster the cause of justice. In Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071 Supreme court observed that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted without jurisdiction as the impugned order was passed in order to foster the cause of justice. This view was cited with approval in Export Promotion Bureau v. Qaiser Shafiullah 1994 SCMR 859. In Begum Shams-un-Nisa v. Said Akbar Abbasi PLD 1982 SC 413 repelling the argument of the respondent that the appellant should have challenged the order of the Settlement Commissioner by filing a writ petition hd that Supreme Court should not substitute its discretion for that of the High Court, Supreme Court held "suffice it to say that the High Court in exercise of its discretionary writ jurisdiction is not bound to interfere in all the circumstances and it would have been a proper exercise of its discretion if it had not interfered with the order of the Chief Settlement Commissioner, whereby he rendered the order of the Settlement Commissioner as null and void was not strictly legal".
11. As the petitioner in the case in hand had created a bad precedent and unpleasant situation for the officials of the respondent-Corporation, it was imperative and incumbent upon the persons at the helm of affairs to undo the wrong, suppress the mischief and to act in aid of public interest rather than perpetuating an illegal act. Such act having been rightly rectified by the incumbent Administrator of the respondent-Corporation, it would amount to abuse of process of law if this Court in the exercise of its discretionary jurisdiction under the Constitution interferes with such decisions which have been taken in the larger public interest with a view to set a healthy principle.
In famous high-rise buildings case reported as Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362, a Full Bench of the Supreme Court emphasised on the principle that it is imperative upon the Courts while exercising jurisdiction in a Constitutional petition to see that discretion is to be exercised in such a way that mischief and chaos are prevented.
12. Adverting to the contention raised on behalf of the petitioner that the respondent-Corporation after the execution of a valid lease-deed in favour of the petitioner was legally estopped from retracting steps and that they had become functus officio in the matter, suffice it to say copy of lease document filed alongwith the petition does not on its face value show whether the same was registered with the Sub-Registrar of Property, which is essential requirement of law under the provisions of sections 17 and 49 of the Registration Act. Moreover, the whole transaction being manipulated, obtained through political pressures and in a manner not recognised by law, the whole series of transactions must extinguish with the finding that the initial act of allotment itself was null and void and against the provisions of law. By canvassing this argument, learned counsel sought to invoke the principle of locus poenitentiae. A reference may be made to the leave granting order in Engineering-in-Chief Branch v. Jamaluddin 1989 SCMR 441 in which the Supreme Court granted leave on the submissions that the principle of locus poenitentiae is not attracted to facts of the case because promotion is not a vested right and moreover respondent could not be allowed to continue to receive benefit of an illegal promotion to the prejudice of his seniors in service. This rule was followed by a Division Bench of this Court in Mumtaz Ali Mangi v. National Bank of Pakistan 1995 PLC (C.S.) 119.
13. Lastly learned counsel for the petitioner made a feeble grievance to the effect that on aft appeal preferred from the impugned action by the petitioner, Additional Chief Secretary, Local Government Department had directed the respondent-Corporation to restore the grant by his order, dated 12-9-1997 but respondent-Corporation paid no heed to it. Learned counsel also placed on record copy of the memo. Of appeal filed by the petitioner. A reference to the letter which was obtained long after the filing of the petition before this Court shows that the letter was a mere recommendation or a word of 'advice to the respondent-Corporation and not an order upsetting the action of the Corporation with regard to cancellation of grant. Even otherwise the contents of the letter do not reflect mind of the authority that he acted in the exercise of appellate or supervisory jurisdiction under section 53 of the Sindh Local Government Ordinance, 1979. While simply recommending the case of the petitioner without any force of law this letter appearing to be a subsequent development during the pendency of the petition, does not in law improve the case of the petitioner which is otherwise without any merit and substance.
14. For these facts and reasons at the conclusion of the hearing by a short order petition was dismissed with costs alongwith pending applications. 6 Aforesaid are the detailed reasons for the conclusion arrived at by us.