1984 PLP 1479 (CLC)

(ii) that there is no basis available in law to have cancelled the allot ment of the petitioner even if it be assumed that the petitioner is in Australia permanently ; and (iii) referring to para. 10 of Schedule III to Zone `B' Martial Law Regulation No. 9, the learned counsel submitted that the allotment of a person is liable to be cancelled only on breach of any of the conditions contained in paras. 5, 6 and 9 of the said schedule which paras. have no relevance to the basis on which the allotment of the petitioner has been cancelled. The learned counsel for respondent No on the other hand, contended- first, that it is a mandatory requirement for an allottee that he must reside in the estate in which he holds allotment as is provided by para. 2 of Schedule III to Martial Law Regulation No.

9. The learned counsel submitted that the exception to the above rule is provided by para. 2 (a) of the above schedule which lays down in the case of a serving officer that his personal residence in the estate may be dispensed with during the period of his service under the Government. It was argued by him that the petitioner being admittedly not in service as he has retired and on his own showing being not a resident in the estate he having shifted to Australia since 1972 the cancellation of allotment is well warranted in law as the very basis of allotment has been violated by the petitioner ; secondly, that the petitioner himself admittedly applied to the General Headquarters for permission to settle in Australia in reply to which he was informed, vide Annexure `R. 1' to the written statement of respondent No. 2, that G. H. Q. has no objection to the petitioner residing abroad and to settle down there, he cannot now turn back and say that he is not permanently settled in Australia. In the same context the learned counsel pointed out that in his statement before the Border Area Committee the attorney of the petitioner also admitted that the petitioner is residing in Australia and that he has not come to the estate ever after leaving for abroad ; thirdly, that the petitioner having shifted to Australia will also be not able to abide by para. 4 (a) of Schedule III ibid, and lastly, that the contention of the learned counsel for the petitioner that cancellation of allotment under para. 10 of Schedule III could be only made on account of violation of rules 5, 6 and 9 has no substance as it has been made in disregard of the fact that para. 10 has since been amended and substituted so as to empower the Border Area Committee to cancel the allotment for breach of any of the conditions mentioned in Schedule

111. He referred to the amendment brought about in Zone "B" Martial Law Regula tion No. 9 by the W. P. Border Area Regulation, 1959 (Punjab Amendment) Ordinance III of 1981.

13. The learned counsel for respondent No. 2 adopted the argument advanced by the learned counsel for respondent No. 1 and further submitted that para. 3 of Schedule III has also been violated by the petitioner and that not only the petitioner has committed breach of a number of condi tions of Schedule III but also he has ceased to be eligible for allotment under Schedule I as he no longer is possessed of qualifications contained in paras. 4 and 6 of Schedule I. The learned counsel for respondent No. 2 also submitted that the very object of the scheme would be defeated if such allotments as held by peti tioner No. 1 are maintained.

14. The learned counsel for the petitioner, in reply, contended that amendment in para. 10 of Schedule III having been enforced on 1st February, 1981 and being not retrospective shall not apply to the petitioner's case whose allotment had been cancelled on 23rd March, 1980.

15. The learned counsel for respondent No. 2 took permission of the Court to reply to the above argument advanced by the learned counsel for the petitioner. He submitted that in addition to the fact that there are established violations of statutory rules committed by the petitioner regard ing allotment of land under the Border Area Committee Regulation which disentitled him for any relief from this Court in exercise of its constitu tional jurisdiction as held in Kohinoor Sugar Mills Ltd. v. Market Com mittee Jauharabad and another (P L D 1976 Lah. 1284), even if it be assumed that the operation of the amended para. 10 could not effect the petitioner's case it would he a futility to set aside the impugned order as the Border Area Committee would under the amended para. be entitled to take up the case afresh and cancel the allotment of the petitioner since the breaches of the conditions of Schedule III particularly the absence of the petitioner from the estate is fully established on the petitioner's own showing and is a continuing one till date. The learned counsel referring to Writ Petition No. 4/1960 titled Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre A. Karachi and others and C. P. S. L. A. No. 92/1961 titled Sh. Rahmatullah v. The State and another (P L D 1963 S C 633) submitted that in similar circumstances the issuing of a writ was not considered desirable.

16. The basic question which falls for determination in this case is whether in the attendant circumstances the allotment of the land in dispute in favour of the petitioner could be cancelled by the Border Area Committee for reasons recorded in its impugned order dated 22nd March, 1980. The relevant provisions of the W. P. Border Area Regulation (Martial Law Regulation No. 9, Zone `B'), 1959 which may have a bearing on the contro versy are reproduced hereunder for facility of reference :- "

2. The provisions of this Regulation, or any order made or direction issued there under, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority or in any rule of custom or usage, or in any con tract, instrument, deed or other document." 5. (a) If a committee, after such enquiry as it thinks fit and after giving the person affected an opportunity of being heard, is of the opinion that any person residing, carrying on business or other occupation, or having property, in a border area, is or has been engaged in smuggling or in any other activity prejudicial to the economy or security of Pakistan, it may, with the previous approval in writing of the Deputy Commissioner of the district concerned, declare, by order in writing, such person to be an undesirable person and direct him to submit, within such time as may be specified in the order, a statement giving full particulars of all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control. (b) If a person in respect of whom an order under sub-paragraph (a) has been made has no immovable property within a border area, he shall, within seven days of the order, remove himself and shall not enter into, or stay in, any border area without the permission in writing of the Deputy Commissioner of the district con cerned."

"6. (a) A Committee may, by order in writing, direct an undesirable person to surrender, within such time as may be specified in the order, all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control- (i) if such property is not evacuee property, to the Deputy Com missioner of the district within which such property is situated, and (ii) if property is evacuee property to the Deputy Rehabilitation Com missioner within whose jurisdiction such property is situated: Provided that no such order shall be made in respect of any owner or occupancy tenant - of agricultural land, or any allottee of such land under the West Pakistan Rehabilitation Settlement Scheme, other than the Border Scheme, unless such compensation as is provided in such paragraph (b) of paragraph 8 has been offered. (b) An undesirable person in respect of whom an order has been made under sub-paragraph (a) shall, within thirty days after the expiry of the period specified in the order, remove himself from the border-area in which he is found and shall not thereafter stay in, or enter into any border area without the permission in writing of the Deputy Commissioner of the district concerned."

"

7. If any property required to be surrendered under paragraph 6 is not surrendered within the period specified in the direction issued thereunder, the Deputy Commissioner or the Deputy Rehabilitation Commissioner, as the case may be, or any officer authorized by him, or the committee or any officer authorized by it, may take possession of the property by evicting any person in possession thereof with such force as may be necessary for the purpose." "

15. No previsions of this Regulations or order made or direction issued there under, shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority, except as provided in this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter arising out of the operation of this Regulation." "MARTIAL LAW REGULATION NO. 9, ZONE "B" Schedule I The following categories of persons will be considered eligible for allotment of evacuee land/property for the purpose of Regula tion 9 :- (4) Service and ex-servicemen recommended by General Headquarters. (5) Service and ex-servicemen already resettled under the scheme subject to the scrutiny of their bona fides. (6) Officers approved and recommended by General Headquarters for providing leadership."

"(2) The new cases will be allotted land on the revised increased scale as follows :- (a) Service and ex-servicemen up to 25 acres of land. Fifty acres of land to an officer (one officer in each Patwar circle)." "

2. An allottee must reside in the estate in which he holds allotment except that- (a) where the allottee is a serving officer, his personal residence in the estate may be dispensed with, during the period of his service under the Government provided at least one of his able-bodied relatives or an ex-servicemen of the prescribed age resides therein. (b) Where the allottee is a serviceman other than an officer his personal residence in the estate will be dispensed with if an able-bodied representative of the prescribed age resides therein. 4. (a) Allottee or his representative will readily respond to the call from appropriate Army or civil authorities in case of an emergency. In the case of an alarm raised in the locality indicated a raid or similar incident the allottee or his representative shall be bound to render immediate help for the protection of the life and security of the persons affected . ... ... . .

8. If the allottee fails to acquire a house in the village abadi, he should build one within a year, of the allotment of a plot of land for the purpose. "

10. As amended by W. P. Border Area Regulation, 1959 (Punjab Amendment) Ordinance III, 1981 :- The allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled."

17. On a conjunctive reading of the aforementioned provision of W. P. Border Area Regulation, 1959 (Zone "B" Martial Law Regulation No. 9) and the Schedules annexed thereto it clearly emerges that the purpose o framing this Regulation and scheme is to habitate the border belt of the country with persons of high integrity, unblemished record and possessed of the qualities of bravery, leadership etc. so that in the events of emergencies requiring protection of the geographical borders of the country these inhabi tants could assist the Armed Forces in keeping the enemies of Pakistan away from entering the country's territories and in the days of peace to have a check and put a restraint on anti-social and anti-State activities such a smuggling etc. The peculiar requirement of para. 2 of Schedule II to Zone "B" Martial Law Regulation No. 9 providing for allotment to Army Officers by placing one officer in each Patwari circle coupled with the requirement of para. 6 of Schedule I to Zone "B" conferring eligibility on such officers as may be approved and recommended by General Headquarter for providing leadership and the further requirement for an officer by virtue of para. 2 of Schedule III to Zone "B" Martial Law Regulation No. 9 that the officer who is allotted land has to reside personally in the village and his personal presence could be only dispensed with while in service of the Government in contrast to the provision regarding the requirement for a serviceman allottee where the personal residence of the serviceman be dispensed with for all times clearly establishes that the officer who is allotted land has of necessity to live in the village and the reason therefore is that he is supposed to provide leadership in eventualities enumerated above.

18. It obviously follows from the statutory provisions governing the allotment of land under Border Area Regulation No. 9 as called out above that the absence of the petitioner from the village/estate having been estab lished on his own admission and the undoubted position also being that be is not absent on account of service with the Government, the allotment in his name cannot be maintained especially when para. 10 of Schedule III, Martial Law Regulation No. 9 has been amended so as to include the power to cancel the allotment in case of breach of any of the terms and conditions as contained in the said schedule. This amendment it appears has been brought about to put a check on the allottees who after allotment were/may not be complying with the provisions under which they had obtain ed allotment, one of the important amongst those being the requirement o residing in the estate.

19. I would also agree with the submission made by the learned coun sel for respondent No. 2 that allotments of land in favour of such officer who are absent from the lands allotted to them and are not residing in the estate do not merit to be maintained as, in my view, maintaining such allotments would tantamount to creating a class of absentee landlords, and sure enough the Border Area Scheme was promulgated not only to give benefit to retiring/retired Army Officers of owning lands but had of necessity the purpose of ensuring the security of the border belt of the country b habitating it with officers who should in eventualities be present at the spot to provide leadership to the inhabitants.

20. In the light of the above position it is manifest that the petitioner having left for abroad and being absent from the estate for the last over eight years before the allotment was cancelled had disentitled himself to retain the allotment.

21. It may be observed here that the petitioner has left for abroad for good is not only established by the material on record, such as the statement of the attorney before the Border Area Committee, his application to the General Headquarters, permission of the G. H. Q. on that application etc., but the fact is owned by the petitioner himself in his general power of attorney, dated 27th February, 1982 wherein in the opening sentence the petitioner has categorically stated as below while giving his description.

22. The further point that may have to be dealt with before the application of para. 10 of Schedule III to Martial Law Regulation No. 9 be held to be applicable to the case in hand in the amended form is the objection that the para having not been made applicable retrospectively could not be applied to the case of the petitioner which was decided on 22nd March, 1980.

23. There are two factors which have prevailed with me to hold that this contention of the petitioner cannot be given any effect firstly, that while deciding a controversy the supervening changes in law and facts have of necessity to be considered and given effect by the Court. Now, after the decision by the Border Area Committee, and before this case came up for hearing before this Court, para. 10 ibid had been amended and the- amended law will have to be taken into consideration by me before deciding whether the impugned order should be set aside or maintained. This para as presently existing lays down that the allotment of a person can be cancelled if he violates and causes breach of any of the terms of Schedule III to Zone "B" Martial Law Regulation No.

9. It being the admitted position, as already discussed above, that the petitioner is residing in Australia and is absent from the estate even now the Border Area Committee will be competent to invoke the provisions of para. 10 aforementioned by taking proceedings afresh and cancel the allotment of the petitioner despite the position that the impugned order may have been set aside by holding that this para in the amended form could not be applied retrospectively. The setting aside of the impugned order on this technical basis will therefore be only a futile exercise and it will amount to giving an opportunity to the Border Area Committee to nullify this Court's writ by taking proceedings for cancellation of allotment of the petitioner afresh. Dealing with a similar question the Supreme Court of Pakistan in P L D ~ 1963 S C 633 has held as under. "The Court will not grant a writ to produce certain effect when the law provides between the.-Parties. affected by the writ to nullify the Courts writ unilaterally and the circumstances enabling such action are found to be present." secondly, there are established violations of law committed by the petitioner about the terms and conditions under which allotment in dispute was made to him under the Border Area Scheme. The ought not to be any cajole with the proposition that any person who has been violating law cannot be allowed to succeed in the discretionary relief that can be granted to an aggrieved person by this Court in exercise of its constitutional jurisdiction. It is a must and should always be expected of a person invoking constitutional jurisdiction of this Court to seek relief by approaching the Court with clean bands and claim a relief only when he is himself not violating the provisions of law, especially of the law under which he is claiming the entitlement.

24. In view of the foregoing discussion there is no merit in this petition which is accordingly dismissed with costs. M. Z. M. Petition dismissed.