1992 PLP 78 (MLD)

Muhammad Riaz Inqalabi for Petitioner. Riaz Alam for Respondents. Through this writ petition, the petitioner has challenged the legality and correctness of the order passed by respondents Nos.1 to 3 in respect of Plot No.16‑E/2, measuring 10 Marlas situate in Sub‑Sector E‑2, New Mirpur Town.

2. The petitioner claimed in the writ petition that he is a Mangla Dam affected person who is settled in New Mirpur Town. The plot in dispute which was adjoining to the house of his father, was under his possession for whose allotment he applied and also deposited the earnest money in the sum of Rs.3,785 on September 3, 1988. His application was pending for disposal when vide the impugned order issued on April 9, 1990, the said plot was allotted in the name of respondent No.5.

3. In written statement, the claim of the petitioner that he is in the possession of the plot in dispute was refuted. It was contended that the petitioner is not an aggrieved person. Morevoer, he has not come with clean hands in the Court, therefore, his writ petition is liable to be dismissed summarily on this ground.

4. The learned counsel for the petitioner has assailed the impugned order on the following grounds: ‑‑ (i) that order of allotment of the disputed plot was passed by respondents Nos.1 to 3 in favour of respondent No.5 at the back of the petitioner. (ii) that the petitioner is a Mangla Dam affected person who was and is in the possession of the site in question as such the plot should have been allotted to him in the light of the scheme of unauthorized possessions. Respondents Nos. 1 to 3, in derogation to the Rules on the subject, have passed the impugned order in favour of respondent No.5; and (iii) that if the allotment was made out of the quota of Prime Minister, even then it was beyond the quota allocated to the Prime Minister.

5. The learned counsel for the respondents vehemently argued that the petitioner has misstated the facts. In order to prove that he is a Mangla Dam affected person, he has attached with the writ petition an application (Annexure A) which was submitted by one Manzoor Hussain son of Ghulam Ali before the Collector Mangla Dam affairs. On this application it was declared that Ghulam Ali, the father of Manzoor Hussain was a resident of Parii, a Mangla Dam affected area. His concise argument is that Manzoor Hussain, per Annexure `A' is son of Ghulam Ali, whereas the present petitioner (Mahboob Hussain) is son of Muhammad Ayub. No relation; whatsoever, between the two has been either pleaded or proved, through an other document. Therefore, on the basis of this document, the petitioner cannot be declared to be a Mangla Dam affected person. Even otherwise, under rule 8(d) (3) of the Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates Rules of 1985, only that person can apply for the allotment of the plot who is the head of his family and who or any of other member of his family has not obtained allotment of any residential or commercial plot of more than five marlas. According to the petitioner, the plot in dispute is adjacent to the plot and house of his father with whom he is residing. Morever, in column No.8 of his application (Annexure A) moved by the petitioner for allotment of plot in question, he has given the details of his seven family members which includes father, mother, two brothers and three sisters. This shows that he is not the head of any independent family and thus is not entitled to move an application for the allotment of any plot. It was further contended by him that order of allotment was passed by the Allotment Committee as is apparent from Annexure `B' whereas the petitioner has not arrayed in the line of respondents, the Allotment Committee. Therefore, in the light of the dictum laid down in P L D 1981 Kar. 349 and P L D 1987 S C (AJ&K) 16, the writ petition is liable to be dismissed. It was further contended by him that whether the Prime Minister has exceeded from his limits of allocated quota of plots or not is a question of fact which cannot be gone into in writ jurisdiction, as no proof in this regard, has been provided along with the writ petition.

6. The record of the case has been minutely perused in the light of the respective contentions of the learned Counsel for the parties. The petitioner who has mentioned his age as 23 years in his application (Annexure A/1) moved for allotment of the plot in question, is one of the family members of his father. It is also an admitted fact that adjoining plot is allotted in the name of his father who after raising construction over his plot, is residing therein along with the petitioner. Therefore, under section 8(d) (3) of the aforementioned rules, the petitioner is not entitled for the allotment of any independent plot. Therefore, a person who has no legal grievance, cannot be termed as an aggrieved person and he cannot invoke the writ jurisdiction of this Court. Furthermore, on the basis of Annexure `A' the petitioner cannot be declared to be a person affected by the construction of Mangla Dam (the only qualification on the basis of which be claims the allotment of the plot in dispute). Per Annexure `A', one Manzoor Hussain son of Ghularn Ali has been declared to be a Mangla Dam affected person whereas the petitioner (herein) is son of Muhammad Ayub. No relation whatsoever, has been disclosed in the memorandum of the writ petition. Therefore, on the basis of this certificate, he cannot be declared to be a person affected by the construction of Mangla Dam whose rights of allotment have been infringed by the Allotment Committee while passing the impugned order of allotment in the name of respondent No.5 on the basis of order of the Prime Minister of the time. Even from this angle, the petitioner has wrongly filed the instant writ petition.

7. As to whether or not the Prime Minister exceeded from the limits of the quota allocated to him, is a question of fact. Neither this point has specifically been pleaded in the petition nor any material has been brought on the file of this Court in order to justify this ground, which has been taken in the arguments. The petitioner with his replication has produced a certificate issued by the Estate Officer Municipal Committee Mirpur to the effect that application of respondent No.5 moved before the Prime Minister for allotment of the plot in dispute along with the order of Prime Minister on the said application are missing from the original file. He in the light of this document, was of the view that neither any application was moved by respondent No.5 nor any order for its allotment was actually passed by the Prime Minister of the time. The impugned order, Annexure `B' apparently shows that the plot in question was allotted in the name of respondent No. 5 on the directions of the Prime Minister out of his quota. All the points which the learned Counsel wants to press, are beyond the scope of his pleadings. Even otherwise, all these questions cannot be resolved without recording the evidence from both sides. A deep probe for the resolution of the controversial fact is not desirable in writ jurisdiction. Even from this angle too, the writ petition is without merits.

8. There is yet another aspect of the case that the allotment order Annexure `B' has been passed by the Allotment Committee, whereas the Allotment Committee has not been impleaded in the line of respondents. It was held in P L D 1981 Kar. 349 that authority which has passed the order under challenge is a necessary party in writ jurisdiction. Again, the same view was upheld by the Supreme Court of Azad Jammu and Kashmir in a case reported as P L D 1987 S C (AJ&K) 16.

9. In the light of the aforesaid authorities, the Allotment Committee was a necessary party. The petitioner has failed to implead the Allotment Committee as respondent in his writ petition. Even from this angle, the writ petition being defective merits no consideration. The same stands dismissed with costs. AA./485/‑H.CA. Petition dismissed