1999 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal, by leave of the Court, has been directed against the order of the High Court dated 17‑9‑1998 whereby the writ petition filed by the appellants, herein, was dismissed by the High Court in limine.

2. The brief facts of the case are that land measuring 10 Kanals, 14 Marlas, situate in village Ghari Dupatta, is evacuee and was allotted to the Education Department of the Azad Jammu and Kashmir Government for the construction of the High School, Ghari Dupatta. Subsequently, without cancellation of the allotment of Education Department, the land was allotted in the name of respondent No.l. Thereafter, the Government College building has also been constructed over the said piece of land. The appellants have alleged that the respondent manoeuvred the allotment of the said piece of land in his favour without the cancellation of the allotment of the Education Department and subsequently also illegally obtained provisional ownership rights in his favour under the provisions of the Evacuee Property Act. The aforesaid orders in favour of the respondent were challenged before the Custodian through a review petition but the same was dismissed. The appellants herein, went up before the High Court in writ petition but the same also failed.

3. It has been contended by Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellants, that the High Court has incorrectly observed that he was not properly engaged by the appellants for filing writ petition in the High Court. The learned counsel has referred relevant Notification of the Government by which he was engaged as a counsel, on the basis of which he filed writ petition in the High Court. It was not seriously controverted by the learned counsel for the respondents so that the counsel for the appellants was duly engaged for doing the needful in the High Court. Even otherwise, the perusal of the said Notification which is on the record of the High Court shows that the counsel for the appellants was duly engaged for filing the writ petition to challenge the finding of the Custodian.

4. Next, it has been contended by the learned counsel for the appellants that the High Court has ignored the fact that allotment in favour of the appellants made in pursuance of section 7 of the Azad Jammu and Kashmir Rehabilitation Ordinance, 1952 (hereinafter shall be called as the Ordinance) and the said allotment in favour of the Education Department of the government has been given protection under section 18 (2) of the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter shall be called Evacuee Property Act) and section 23 of the Pakistan Rehabilitation Act, 1956 (hereinafter shall be called the Rehabilitation Act). The learned counsel has contended that the aforesaid statutes were enforced in Azad Jammu and Kashmir in the year 1959 but all the allotments previously made by authorities have been given protection. Thus, according to the learned counsel for the appellants, the High Court has committed an error in dismissing the writ petition on the ground that evacuee property could not be allotted to a person other than a refugee. The learned counsel has contended that it is clearly mentioned in section 7 of the Ordinance that allotment for economic or social uplift can be made whether a person was refugee or not. The learned counsel has further contended that the Government or for that matter Education Department would be deemed to be a "person" for the purpose of allotment in question and the allotment for establishing an educational institution being conducive to the social uplift of the society would be legal. He has submitted that the learned Custodian and the High Court failed to appreciate the provisions contained in section 7 of the Ordinance. He has further argued that even if it is assumed for the sake of arguments that the said allotment was violative of law or even void, that stood validated by the protections envisaged under section 18 (2) of the Evacuee Property Act and the Rehabilitation Act. He has further submitted that even a void order, if not challenged before the appropriate authorities, cannot be ignored while exercising writ jurisdiction. He has referred to a case reported as Muhammad Naseer Jahangiri and 13 others v. Abdus Sami Khan and another (1997 PLC (C. S) 1115) wherein it has been held that even a void order must be challenged so as to avoid its effect. The learned counsel has further contended that it has been incorrectly stated in the allotment permit issued in favour of Abdul Ghaffar Butt, respondent, that his allotment was made after the consent of the appellants. In alternative, he has argued that even otherwise, the allotment made in favour of the appellant could only be cancelled by the Government in view of the amendment made in section 18 of the Administration of Evacuee Property Act: He has relied on a case reported as Muhammad Shafi v. Mst. Jannat Bibi and others (1994 SCR 247) in support of his contention.

5. In reply, Kh. Shahad Ahmad, the learned counsel for respondent No.l, has controverted the arguments advanced on behalf of the appellants. He has argued that section 7 of the aforesaid Ordinance stipulates that an allotment to a refugee o; non‑refugee can be made only to a National of the State. He has argued that the bare reading of the said provision reveals that a Government or for that matter Education Department cannot be regarded as a National of Azad Jammu and Kashmir State by any stretch of imagination. The learned counsel argued that the word 'National' implies only a living person and not an educational institution. He has further argued that tile protection given to the allotments made prior to enforcement of the Evacuee Property Act and Rehabilitation Act would not rectify the allotment which is ab initio void; the protection would be available only to the allotments which were made according to law which was in force at the relevant time and not to allotments which were made in patent disregard to it.

6. We have given due consideration to the arguments raised at the bar. It would be expedient to reproduce section 7 of the Azad Jammu and Kashmir Rehabilitation Ordinance, 1952 as under: ‑‑ "7.??????? Right to pool and allot property.‑‑(1) The Azad Kashmir Government may by order authorize a Rehabilitation Commissioner to pool such evacuee property as may be specified, and to allot the same to persons resident in Azad Kashmir (Jammu and Kashmir Nationals unless otherwise specially authorized by the Government) whether refugees or not and won such order being made the Commissioner shall have all such Dowers,‑not inconsistent with the provisions of this ordinance as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid. (2)??????? When in pursuance of an order under sub-section (1) the right to pool and allot such property is vested in the Commissioner, neither the vesting nor anything done in consequence thereof shall be invalidated or affected by reason only that at material time‑‑ (i)???????? some persons who were or might have been interested in the property and who was an evacuee had died or had ceased to be an evacuee; or (ii)??????? some person who was so interested and was believed by the Commissioner to be an evacuee was not an evacuee." (Underlining is ours).

7. A bare reading of the provisions would reveal that the provision relied upon by the learned counsel for the appellants does not support his contention that the allotment made in favour of the Education Department was permissible under law. It needs hardly any argument that the abovementioned provisions clearly stipulate an allotment in favour of a National of the State whether local or refugee. It does not stipulate the allotment in favour of the Government or for that matter in favour of a department of the Government because the same cannot be regarded as 'Nationals' of the State. Thus, it cannot be said that the Government or the Education Department would be inclusive of word "person" used in section 7 of the Ordinance.

8. The contention of the learned counsel for the appellants that even if the allotment in favour of the appellants was violative of law, that stands legalised by the protection envisaged under section 18 of the Administration of Evacuee Property Act or under section 23 of the Rehabilitation Act is not tenable because the protection evidently would be available to the allotments made according to law existing at the relevant time and not to those which were violative of the said law. Thus, if an allotment was not made according to existing law at the relevant time, it cannot be regarded to have been protected under the abovementioned provisions.

9. The contention of the learned counsel for the appellant that even if the allotment in favour of the appellants is void, that should have been challenged by the respondent before the appropriate authority otherwise it cannot be ignored, does not help his case. Because it was the appellant who filed the writ petition in the High Court and it has4 been repeatedly held by this Court that a person who seeks relief by invoking writ jurisdiction must come with clean hands; if a person bases his claim on a void order, he is not entitled to any relief in exercise of writ jurisdiction. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. H.B.T./382/SC(AJK) ????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.