2000 PLP 2774 (YLR)

"Regularization of encroachments etc.‑‑‑The Chairman may regularize the encroachments subject to the provision of Master Plan and Local Government Ordinance on any piece of Government land/rejected area in a prescribed manner; provided that (i) the person who has encroached upon the Government land or rejected area, fall in criteria under clause 9(2) above; (ii) the encroachment does not affect the Master Plan/Original Planning; (iii) the encroachment may not affect any road, plot, or areas reserved for Government buildings, like Hospitals, Schools, Dispensaries, or any other public institution or areas reserved for disposal works sewers of water supply lines, etc.; (iv) the encroachment which has been affected prior to 30‑6‑1981 and the same is sufficiently approved by the official records; (v) the encroachment is by no means against the approved housing scheme and more than one Kanal. "

6. According to Regulation 16 only that encroachment can be regularized which originated prior to 30th June, 1981. It is a mandatory requirement that encroachment as aforesaid has to be proved by official record, but in the relevant tile maintained by the Municipal Committee there was no such proof. In fact. there was no proof in the tile that the land regularized in favour of the appellant, or part of it, was ever encroached upon by appellant Muhammad Adalat. Fact of the matter is that in the written statement filed in the High Court Muhammad Adalat did not claim that he had made any encroachment. On the contrary it was stated in para. 1 of the written statement that Munshi Khan had a Khokha' which he sold to one Lai Muhammad who sold it to one Abdul Aziz and it was subsequently purchased by him (Muhammad Adalat). In the memorandum of appeal filed in this Court it has not been stated that the finding of the learned Judge in the High Court was incorrect. It follows that the finding has to be upheld. The result is that it is held that the appellant did not fulfil ‑the qualification laid down in Regulation 16, reproduced above, and the order passed by the Mayor in the appellant's favour was illegal.

7. The High Court has also held that in any case the order of regularization in favour of the appellant was cancelled by the Government and that the Local Task Committee had no jurisdiction to restore that order. It was held by the High Court that Local Task Committee does not figure anywhere in the relevant laws. This view has been challenged before us by Mr. Muhammad Siddique Chaudhry who relied on section 61‑A of the Azad Jammu and Kashmir Local Councils Act which reads as follows:‑‑‑ "61‑A. Appointment of Revising Authority. ‑‑‑(a) There shall be a Revising Authority, to be appointed by the Government for the scrutiny of irregularities or illegalities committed in respect of allotment of plots or estates or in determination of title of any allottee or person applying for allotment; (b) .. (c) ..

8. Mr. Muhammad Siddique Chaudhry contended that the Local Task Committee was the same a Revising Authority contemplated in the provision of law reproduced above.

9. Mr. Liaquat Ali Khan, the‑learned counsel for respondent Munshi Khan, contested this submission by rightly contending that section 61‑A only allowed the Government to set up a Revising Authority and by no stretch of interpretation a Local Task Committee could be described as a Revising Authority. Our considered view is that a Local Task Committee cannot be construed to be a body set up under section 61‑A as has been held by the High Court. In our view if a body is constituted under section 61‑A it has to be designated as the Revising Authority which is a name given by the law‑makers. Apart from that section 61‑A is not mentioned in the notification by which the Local Task Committee was set up.

10. It was vehemently contended by Mr. Liaquat Ali Khan that in any case an action under section 61‑A could only be taken in case of subsisting allotments and if the allotments have already been cancelled, as was the case in hand, there was no question of examining their legality or propriety. We agree with Mr. Liaquat Ali Khan that a Revising Authority can only be set up in respect of subsisting allotments and not in respect of allotments which have already been cancelled. In the present case the allotment in favour of the appellant was cancelled through a general cancellation order, therefore, even a Revising Authority set up under section 61‑A, could not deal with the cancelled allotments.

11. With great vehemence, it was contended by the learned counsel for the appellant that Munshi Khan respondent was not an aggrieved person and he could not file a writ petition to challenge the order passed by the Mayor in favour of the appellant. It was contended that the land regularized in favour of the respondent had not been in his possession. This contention has no force in light of the documents on the record. As has been noticed earlier, the appellant Muhammad Adalat himself stated in para. 1 of the written statement tiled in the High Court that respondent Munshi Khan had a 'Khokha' which he sold to Abdul Aziz and it was subsequently purchased by him (Adalat). This is the basis on which he claimed regularization. This averment clearly proves that the piece of land regularized in favour of Muhammad Adalat included the land over which respondent Munshi Khan's 'Khokha' stood. Apart from that in the writ petition there are several receipts issued by the Municipal Corporation showing that Munshi Khan had been paying 'Teh‑Zamini Tharra Tax' to the Municipal Corporation. The receipts relate to 1986, 1992, 1993. The last payment was made on 26th March, 1994. Respondent Munshi Khan moved various applications before higher authorities. He tiled a grievance petition with he Mohtasib of Azad Jammu and Kashmir who accepted the application and found that the Municipal Corporation had been guilty of mal administration. In the order passed by the Mohtasib, which is Annexure PA/17, it is mentioned that Local Government Board (Municipal Committee, Mirpur) submitted a report to the Mohtasib in which it was stated that three 'Khokhs' had been erected on the land under reference by Muhammad Adalat, Muhammad Yunus and Munshi Khan and the said 'Khokhas' were forcibly removed in operation clean up and out of the land under the aforesaid ' Khokhas' land measuring 20'x 40' was allotted to Muhammad Adalat. This funding, which has not been challenged by any one so far lends support to the conclusion that Munshi Khan had erected a 'Khokha' which was demolished and site of three 'Khokhas' was partly allotted to Muhammad Adalat, the present appellant. Also available in the file as Exh. PA/21 is a certificate issued by the Municipal Corporation that Munshi Khan had paid. 'The Zamini' of a ' Khokha' in Bus Stand Mirpur till March 1997. There are numerous other documents which prove the fact that Muhammad Adalat had constructed the 'Khokha' under reference. Since the land under the 'Khokha' of Munshi Khan was allotted to Muhammad Adalat, his locus standi to file the writ petition cannot be questioned.

12. Thus the judgment of the High Court is unexceptionable. Consequently we find no force in appeal filed by Muhammad Adalat.

13. Facts of Civil Appeal No.106 of 1998 titled Muhammad Yunus v. Chairman Municipal Corporation and others are that Muhammad Yunus claimed that the had a 'Khokha' in the Bus Stand Mirpur, the same place which is a subject‑matter of the appeal filed by Muhammad Adalat disposed of above. He attached a number of documents to show that he had erected a 'Khokha' and that he was paying 'The Zamini'. The receipts attached with the writ petition are official documents which have not been challenged by the other party. Admittedly operation clean up was undertaken and the 'Khokhas' were demolished. Subsequently small‑sized plots were treated over the land previously in possession of Muhammad Yunus and the plots were allotted in favour of Muhammad Adalat and Tanveer Ahmed by way of regularization of encroachments. Muhammad Adalat is the same person who is appellant in Civil Appeal No.14 of 1999. The allotments were cancelled by Government notification. Subsequently both the plots mentioned above were restored by the Local Task Committee. The points involved in this appeal are the same as in Appeal No. 14 of 1999. The principles laid down in the abovementioned appeal are fully applicable to the present case. However the writ petition tiled by Muhammad Yunus was dismissed while the writ petition filed by Munshi Khan was accepted which created an anomalous situation.

14. In the light of principles laid down above the judgment of the High Court in writ petition filed by Muhammad Yunus has to be set aside.

15. However Mr. Muhammad Yunus Tahir, the learned counsel for Tanveer Ahmad respondent No.5, submitted that Muhammad Yunus had no locus standi to challenge the regularization made in favour of Tanveer Ahmad because the land over which the ' Khokha' of Muhammad Yunus was erected has not been allotted to Tanveer Ahmad. The factual position is that respondent Tanveer Ahmad as not in possession of any land and regularization order in his favour is void ab initio. We have gone through the concise statement tiled in this Court by respondent Tanveer Ahmad but it is not mentioned in it that land in possession of Muhammad Yunus was not allotted to him (Tanveer Ahmad). Even in the written statement filed in the High Court Tanveer Ahmad did not raise any such objection. Apart from that Muhammad Yunus does not need to prove a right in the strict juristic sense. He was a person who was running a ' Khokha' and was desirous of getting it regularized. Respondent Tanveer Ahmed was not in illegal possession of any land since 1981 and there was no question of regularization in his favour. The only way in which he could be allotted a piece of land was by inviting applications and by following the procedure laid down in the Regulation. Since no applications were invited the appellant had the locus standi to challenge the illegal allotment made in favour of the said respondent. The learned counsel for the appellant, Mr. Muhammad Riaz Inqalabi, has rightly relied upon the case reported as Raja Muhammad Asif v. Chairman Municipal Committee, Mirpur and others 1994 SCR 167 in which it was held that if applications are not invited, every person who has a right to get a plot allotted can tile a writ petition in the High Court to challenge illegal allotments. We may also point out that the disputed allotments made are in the same vicinity. Therefore two contradictory decrees cannot be passed by quashing the allotment of one.land and upholding the allotment of the other land when both the allotments were made in the same transaction. Consequently Civil Appeal No. 106 has to be accepted. It follows that:‑‑‑ (i) Civil Appeal No. 14 of 1999 titled Muhammad Adalat v. Munshi Khan is dismissed. (ii) Appeal No. 106 of 1998 titled Muhammad Yunus v. Chairman, Municipal Corporation is accepted and the writ petition filed by Muhammad Yunus is accepted with the result that allotment impugned in the writ petition is quashed. H.B.T.77/SC (AJ&K) Order accordingly.