P L D 2000 Karachi 224 (PLP)

9. Mr. Abdul Fattah Malik learned Advocate for the petitioners countered the arguments of learned Addl. A.-G. by saying that the petitioners have questioned the executive actions of the official respondents who are required to observe and follow certain statutory rules and regulations. They cannot be allowed to act arbitrarily. According to him such actions of public and executive functionaries are always amenable to writ jurisdiction.

10. We have heard learned counsel for the parties and perused the record an4 ocuments placed before us.

11. Indeed in contractual matters it is settled proposition of law that writ would not lie to enforce contract simpliciter, but observance of statutory rules and regulations by the public functionaries, governing such contract can be enforced through writ of mandamus (for reference one can look at 1992 CLC 2329, PLD 1992 Kar. 283, 1993 CLC 432, 1998 CLC 833 and PLD A 1999 Kar. 472).

12. Petitioners in order to seek enforcement and due observance of statute-y rules and obligations on the parts of public/executive functionaries must successfully demonstrate that there exists in their favour clear and undisputed right or interest which need be recognized, and respected only then they can seek enforcement of corresponding obligations and duties on the part of public/executive functionaries through appropriate writ.

13. In order to appreciate the contention of the learned counsel for the petitioners, it will be necessary to scan the terms and conditions of lease, enforcement of which is being sought, as also the law governing such lease.

14. Copies of three lease deeds originally for five years favouring all three petitioners have been filed in C.P. No.879/1994; but no such copy in C.P No.880/1994 has been filed. Clause 4 of the lease governing tenure reads as under: "

4. The lease shall be for a term of five years and shall be deemed to have commenced with effect from the beginning of Kharif season of 1991 and to have concluded with the Rabi season of 1996 unless the lease is sooner terminated in accordance with the provision hereinafter appearing." Termination clause is couched in the following language: "

8. Should the Conservator of Forests/Chief Conservator of Forests decide that the lessee is not faithfully carrying out the terms of this instrument in a proper and workman like manner the Conservator of Forests, or Chief Conservator of Forests as the case may be terminate the lease after giving a notice of at least 15 days in writing to be served upon the lessee, and after giving him a chance to be heard, and to confiscate security aforementioned and to eject the lessee from the said land and the lessee shall have no claim to any compensation on account of such action of the Conservator of Forests/Chief Conservator of Forests, or on account on any crops which may be standing on the said land at the time of such ejectment. " Clause 10 of the lease stipulates exceptions and reservations by Government. Such exceptions and reservations are numerous but, sub -clause (g) of clause 10 is relevant for the purpose of instant case and is reproduced for a ready reference: "(g) As mentioned in clause 4 above this lease instrument is for five years only and is sanctioned under Martial Law .Orders Nos.60 and 69 as published in the Sindh Government Gazette dated April 20, 1978 and July. 10, 1978 and the lease is neither renewable nor extendable under any circumstance whatsoever. "

15. Prom the above it is clear that lease in respect of forest land is governed and regulated under the Martial Law Orders Nos.60 and 69 dated April, 20, 1978 and July 10, 1978 respectively.

16. Cumulative effect of M.L.Os. 60 and 69, is that 'no lease of forest land is to be granted except by public auction.

17. The authorities competent to grant lease in respect of forest land through auction under "The West Pakistan Delegation of Powers under the Financial Rules and the Powers of Reappropriation Rules. 1962" are as under: S. No. 7 Lease of land (i) Chief Conservator By auction or tender in forest areas of Forests. up to 5 years 'for irrigated land and up to 15 years for Barani land. (ii) Conservator By auction or tender of Forests for-annual lease. (iii) Divisional Forest By auction or tender Officer up to 50 acres in each for one year.

18. In the instant case, initially lease was granted for a period of five years i.e. from Kharif 1991 to Rabi 1996 in open auction. As narrated, in facts above; even before the commencement of first term of lease, same was extended for period. of 30 years by the then Chief Minister of Sindh at the behest of the petitioner. Exercise of such authority of the Chief Minister ,is being justified and defended by the petitioners.

19. Now adverting to the first contention of the learned counsel for the petitioners, according to him Chief Minister being executive head has all the plenary powers at his command which he is authorised to exercise by virtue of his office.

20. Under the Constitution of Pakistan, 1973 executive authority of the Province vests in the Provincial Governor, (Article 129). Such authority is to be exercised by him directly or through other functionaries under the Constitution; Chief Minister and other Minister of his Cabinet exercise executive authority as delegatee of the Provincial Governor by virtue of "Sindh Government Rules of Business" (Rules of Business) framed under sub-Article (2)` of Article 139 of the Constitution, Exercise of executive authority is not unfettered, unbridled or uncontrolled but under Article 137, is circumscribed, conferred and regulated by the Constitution or legislative, Instruments framed thereunder, 21, Exercise of executive authority in relation to grant, sale, disposal or mortgage of its property by virtue of Article 137 is not only subject to, but is also required to be necessarily regulated by law.

22. Chief Minister of a Province by virtue of his office under the Rules of Business may exercise all the executive powers of the Governor directly or may further, delegate all or any of his powers under the Rules of Business to the Minister or Secretary of the respective Department (Rule 7).

23. In a Constitutional set-up all the functionaries derive power and authority from the. Constitution itself or from the law as may be framed by the Legislature. Obedience to the Constitution and law is the inviolable obligation of every citizen, higher the authority more the, responsibility for such obedience and. observance. Constitutional functionaries like Chief Minister take oath and swear allegiance to discharge their respective duties and to perform functions honestly to the best of their ability faithfully in accordance with the Constitution and the law in the- interest, well being and prosperity of the country. Any failure, disobedience in the due observance and performance of such "inviolable obligation" may attract judicial superintendence, enforcement and correction by way of appropriate writ in Courts of law.

24. Contention of Mr. Abdul Fattah Malik, Advocate, that the Chief Minister, under Part III, rule 7(i) and (iii) of. the "Rules of Business" has power to grant lease of any tenure and duration even without consulting the Minister of that department and same cannot be questioned, is difficult to sustain.

25. Contention is wholly misplaced. In a Constitutional set-up it is misconception to presume that Constitutional/public functionaries including the Chief Minister possess .any unfettered, plenary or inherent power or authority to do whatever they like, such may lie true for, an aristocratic rule not under the Constitutional rule.

26. Under 1973 Constitution all the authorities, however, high may be, derive authority from the Constitution. In this manner they are subservient to the, Constitution and law and not vice versa as commonly practised and believed by such authorities.

27. In the light of above discussion there is no difficultly in arriving at a conclusion that the Chief Minister or for that matter any authority is not inundated with powers and jurisdiction to allow extension or conversion of lease of "Forest Land', same being regulated by M.L.Os. 69 and 70, as discussed above. Authority and manner, to grant such lease is contained in "Reappropriation Rules, 1962" referred to in para. 16 above.

28. Any effort to extract authority under the 'Sinda Government Rules of Business, 1986' is futile and dangerous, as 'Rules of Business' cannot be equated with statute law. Same are subordinate legislation tending to facilitate expeditious disposal of Government business to meet the convenience and requirement of the public in a democratic and Constitutional set-up, through the medium of authorities and public functionaries mentioned therein including the Chief Minister, this is in consonance with principles of policy as enshrined in Article 37(i) of the Constitution. Rules of Business do not enlarge or, enhance the jurisdiction and scope of authority of executive/public functionaries but, merely regulate the exercise of already existing authority and jurisdiction as are conferred by the Constitution and statute law enacted thereunder.

29. Laws in a Constitutional set-up are enacted to be respected, observed and executed in their proper perspective, fairly, equitably and in a most transparent manner. These are not to be ignored, bypassed or flouted at the whims and fancies, liking or disliking of executive/public functionaries whosoever or howsoever higher in authority it may be. In a case reported as Calicon (Pvt.) Ltd. v. Federal Government of Pakistan and others 1996 MLD 705), it was held that where appropriate Legislature is available, its c provisions are to be followed by the executive authority in the matter of sale, mortgage or disposal of property vested in Government.

30. In view of the above discussion, there is no difficulty in arriving at a conclusion that under Article 137 of the Constitution read with M.L.Os. 60 and 69 and Reappropriation Rules, 1962 read together with clause 10(g) of the lease deed reproduced above, the Chief Minister had no authority whatsoever, either to renew or extend the lease in relaxation-of rules, by passing, ignoring the Constitution, and law regulating such lease. The renewal/extension of lease granted by the Chief Minister is not only flagrant breach of his "inviolable obligation'.' to respect Constitution but also in disregard of the Oath of office which, he had taken, as such, cannot be approved by the Courts of law. It is thus liable to be struck down. Above view also finds support from cases reported as The State v. Abdullah Shah 1988 MLD 216) and Zahur Illahi v. Mr. Zulfiqar Ali Bhutto PLD 1975 SC 383).

31. Adverting to the second contention of the learned counsel for the petitioner that the impugned order cancelling the lease is in violation of principles of natural justice, principles of natural justice, are always invoked where any right or interest, of a person is infringed or violated without show cause. In order to seek protection behind the principle of natural justice, one must show categorically that right or interest exists and same has been conferred or acquired validly and legally. Principle of natural justice is very well accepted and recognized principle of equity; the same is so deeply embedded in our legal system; that it is respected and enforced by Courts of law now and then. even where it is not specifically conferred by the statute. It is also well recognized and established principle of equity that one who claims equity must do equity.

32. In the instant case, as stated supra, the initial lease for 5 years granted to the petitioners was in accordance with law, terms and conditions governing lease of 'Forest Land'. But as is apparent from record that lease was 'renewed/extended' by the Chief Minister of Sindh, in "relaxation of rules" at the behest, of the petitioners even before the initial lease commenced.

33. Power or authority to sale, mortgage, dispose of or deal with the State property is conferred unto the public/executive functionaries as a sacred trust; onerous duty is cast upon such functionaries to discharge such duties, faithfully, carefully in the best interest of the State. State property cannot be allowed to be traded for personal gains, political motivation or otherwise. Petitioners being privy to such malpractice and violation of Constitutional provisions and statute law, cannot now seek shelter behind the "Principle of Natural Justice

34. In a well-authored unreported judgment delivered by one of us (Rana Bhagwan Das, .J.) in C.P No. D-897/1996 viz. Mst. Noor Jehan v. Government of Sindh and other 2000 CLC 1005 in a somewhat similar situation where the petitioner procured a lease in her favour in a questionable manner challenged the cancellation being violative of principle of natural justice, it was aptly held: . 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 moreso 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 petitioners' 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 cerrtiorari 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. "

35. From the facts on record, there is no difficulty in arriving at a conclusion that extension/renewal of lease is in breach of Constitution apart from statutory rules and regulations. Simply because renewal/extention was granted by the highest authority of the Province, will not give it any solemnity or lend validity. The principle "Ab initio non valet intractu temporis non condaleseit" (that which was originally void does not by lapse of time become valid), would also strictly apply.

36. The cases reported as PLD 1973 Lah. 528 and 1993 CLC 2344 cited by the learned counsel for the petitioner in relation to violation of principle of natural justice are distinguishable. In those cases, the petitioners were not privy to malpractice or illegality or political manoevuring as is in this case.

37. In the last learned counsel relying on the cases reported as PLD 1969 SC 407 and PLD 1979 Quetta 131 attempted to argue that once the lease is granted, particularly by the highest authority of the Province such step cannot be retracted as principle of locus poeniteritiae would come in its way.

38. Principle of "locus poenitentiae" like the principle of natural justice, is. a principle of equity. Once it is established that a decisive step has been validly taken by the public/executive functionary such steps are unretractable and a right crystallizes in favour of a person but such is not an absolute rule, in case where it is shown that petitioner has connived in prompting such decisive step then the principle may have no application. In a case reported as 1999 CLC 798, it was held that allotment made by mistake, is void ab initio cannot be protected by extending principle of finality thereto. In the case reported as Zahoor Ahmed v. Manek Ali NLR 1994 CU 227 it was held that illegal order passed with active participation and move of the petitioner cannot be sustained.

39. In the instant case, also we are confronted with similar situation. The so-called decisive step was taken by the Chief Conservator of Forests on the instructions of the then Chief Minister of Sindh who extended/renewed lease in "relaxation of rules". As held above that lease of forest land could only be granted in open auction that too for a maximum .period as referred to in para. 17 above by the Chief Conservator of Forests, the Chief Minister of a Province, had no authority under law to nullify, amend or overrule the provision of law by his executive direction or order. Any direction or order issued in 'relaxation of rules' which is in negation of statute, law rules and regulations cannot override the provisions of law and- same cannot be sustained on any count. In the case reported as Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 it was held by the apex Court that "compliance of an illegal order by a subordinate officer could neither be justified nor can be defended".

40. In the light of above, it cannot be argued that the Chief Conservator of Forests merely carried out the executive direction of the Chief Minister. Such exercise is in futility, executive directive having no backing of law, cannot be enforced by invoking writ jurisdiction.

41. Principle contained in maxim "Frau et dolus menini patroce nari debut" (Fraud and deceit ought not to benefit anyone) is well recognised by our Courts. It is consistent .view of the superior Courts that discretionary relief by way of writ cannot be granted to help retention of ill-gotten gain,, even where the impugned action has been taken in deviation of 'certain recognized norms and procedures. (For. reference we may refer to 1989 SCMR 441, 1995 PLC (C.S.) 119, PLD 1995 SC 331, PLD 1974 SC 106, 1989 MLD 1046).

42. High Court, in this writ jurisdiction will not extend the protection of law to a delinquent person to retain a gain, privilege or benefit which was, acquired by manipulation and in flagrant violation of mandate of law. High Court will not endorse an executive act, even of the highest executive authority of the Province if the same is established to be in excess of authority and in breach of Constitutional provisions and law as is the case in the instant petition.

43. Case in hand is one of the many, glaring examples of abuse of public confidence and breach of trust on the part of executive functionaries, who take pride in flouting the law, higher the authority more reckless it is. In an environment of nepotism and anarchy if a new incumbent in the office -of Chief Conservator of Forests the respondent No.3 has revoked the extension of lease which was inherently illegal and void ab initio, by doing so respondent No.3 has in fact retracted the wrong step, in order to retrieve and restore the public property to be dealt with strictly in accordance with law. Such action even if in deviation of certain norms and procedure cannot be said to be altogether illegal and unjust as it is a step in right direction that has set right a wrong.

44. Even otherwise, there is nothing on record to show that the petitioners have paid lease amount due .for holding over, after the initial period of five years. The respondents shall take steps to ensure that unpaid lease amount, due and recoverable, is collected from the petitioners within 30 days, under intimation to the Additional Registrar of this Court.

45. Resultantly, the petitions are dismissed with no order as to costs. Q.M.H./M.A.K./A-25/K Petitions dismissed.