2000 PLP 1150 (MLD)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑ This appeal, with the leave of the Court, is directed against an order passed by the High Court on 20‑4‑1999, whereby the writ petition filed by the appellant, herein, was dismissed.

2. The brief facts, giving rise to, the present appeal, are that the appellant, herein, challenged the allotment of Plot No.282‑A, measuring 10 Marlas, situate in Sub‑Sector G‑1 Mirpur, According to the appellant, the plot in question was allotted by the Chairman M.D.A. to Ghulam Haider Bajwah, now represented by respondents Nos.4 to 8, and Capt. Manzoor Ahmed, respondent No.9, jointly. The appellant being aggrieved by the aforesaid order of the Chairman M.D.A. challenged the allotment through a writ petition, but the High Court vide its impugned order, dated 20‑4‑1999, dismissed the writ petition mainly on the following grounds:‑‑ (i) that the appellant had already availed the remedy by filing a civil suit and as such he was debarred from filing a writ petition; (ii) that on the suit filed by respondents which was finally decided by the High Court on 13‑10‑1996, a direction was given to the M.D.A. to consider the case of respondents in the light of reports made by M.D.A. officials; and (iii) that the petitioner has failed to place on record any other proof substantiating his claim to be the allottee of the plot and the documents filed by the appellant were photostat copies as such the civil Court did not rely on these documents. It is the aforesaid order of the High Court which is the subject of present appeal.

3. Arguing the case on behalf of appellant it was vehemently contended by Mr. Muhammad Riaz Inqalabi, the learned counsel for the appellant, that the impugned judgment is violative of law and as such is not sustainable. The learned counsel submitted that the High Court observed that the appellant had already availed the remedy by filing a civil suit and as such he was debarred from filing a writ petition, but the aforesaid observations are factually and legally incorrect. The suit which has been the subject of controversy, according to the learned counsel for the appellant, has no relevancy to the present writ petition. The learned counsel contended that when the civil suit was filed, the plot in question was ,not allotted to respondents. The appellant, herein, much earlier than the allotment in favour of respondents filed a suit for perpetual injunction in the civil Court, wherein the plaint was rejected under Order VII, Rule 11, C.P.C. The plot in question was allotted to respondents on 21‑3‑1997, which gave a fresh cause of action to the appellant for filing a writ petition. The learned counsel strenuously argued that the appellant was aggrieved person as he had been striving for the allotment of plot in dispute and it stood allotted to the appellant before the allotment of respondents. The learned counsel also contended that the respondents had already obtained various allotments in their names, thus, they were not eligible for further allotment. The learned counsel pressed into service the submission that the subsequent allotment was made in favour of respondents by the Chairman M.D. A. who had no jurisdictional competence to allot the same.

4. Controverting the arguments raised by the learned counsel for the appellant, Raja Imdad Ali Khan, the learned counsel for respondents Nos.4 to 10, submitted that the impugned judgment passed by the High Court was perfectly valid and suffered from no illegality or infirmity. The civil suit filed by the appellant, according to the learned counsel for respondents, was with regard to the same plot which was dismissed by the trial Court, as such the appellant after availing the alternate remedy was debarred from challenging the allotment through a writ petition.

5. We have given our due consideration to the arguments advanced at the Bar ,and perused the relevant record. It may be observed that the High I Court mainly dismissed the writ petition filed by the appellant on the ground that the appellant after availing the remedy of civil suit was debarred from filing a writ petition. The observation recorded by a learned Judge in the. High Court does not appear to. be correct for the following reasons:‑‑ (i) that the suit was filed by the appellant against the M.D.A. functionaries in order to restrain them from interfering into his possession which was dismissed as the plaint was rejected under Order VII, rule 11, C.P.C., for non‑disclosure of cause of action. The rejection of plaint under Order VII, rule 11, C.P.C. does not debar a fresh suit or filing of writ petition as the controversy in issue was not finally adjudicated upon or resolved on merits; (ii) that when the previous suit was filed there was no allotment in the name of respondents as the allotment in favour of respondents was made on 21‑3‑1997, whereas the plaint was rejected on 10‑4‑1994; and (iii) that when the allotment was made in the name of respondents in March 1997, a fresh cause of action accrued to the appellant to file the writ petition. Therefore, in our considered view, the learned Judge fell in error in observing that after the rejection of plaint filed by the appellant, he was precluded from filing the writ petition.

6. The High Court also observed that in the suit filed by respondents a direction was given by the High Court to the M.D.A. functionaries that the case of respondents may be considered in the light of report of the Estate Officer M.D.A. and the rules applicable in the matter. The aforesaid observation of the High Court, in our view, does not entitle the M.D.A. authorities to allot the plot in question to respondents without looking into the relevant law and the entitlement of the rival claimants.

7. The High Court also escaped . the notice of the fact that the appellant, herein, had been striving hard for the allotment of the said plot since January 1988. His application, dated 13‑1‑1988, is attached with the writ petition as Annexure ' PA/2' . On this application various reports .were made by subordinate staff and ultimately in the minutes of the M.D.A. Board, dated 28‑3‑1989, it was decided that the plot in question could not be allotted to the appellant and he may apply for allotment of a plot on the prescribed .form 'in some different Sub‑Sector. It was also observed by M.D.A. Board that the other contestants Ghulam Haider Bajwah and Capt. Manzoor Ahmed have already been allotted plots, therefore, they were not entitled to the allotment of plot in dispute. Accordingly the appellant deposited the earnest amount of Rs.8,000 on 9‑4‑1990, and the file was processed Ultimately the Chairman vide his order, dated 28‑1‑1990, sanctioned the allotment of Plot No.282‑A, in favour of appellant, of the size of 121' x 135' in Sub‑Sector G‑

1. On 9‑3‑1994, the appellant moved an application before the Chairman M.D.A. (Annexure 'PA/8'), wherein he submitted that the plot in question was allotted to him in 1990 but the file of the same is not available in the M.D.A., therefore, the part‑file may be prepared. On this, a report was obtained by the Chairman M.D.A. from the lower staff on 30‑6‑1994, wherein it was categorically mentioned that the claim of appellant is admitted as correct. However, the respondents filed a civil suit in the trial Court without impleading the appellant as a party which was dismissed by the trial Court. In the ultimate analysis the High Court vide its decision, dated 13‑10‑1996, issued a direction that the case of respondents may be considered by the M.D.A. functionaries on the basis of report of Estate Officer and the relevant rules. On this direction the Chairman M.D.A. alone allotted plot in dispute to respondents on 21‑3‑1997.

8. It was vehemently contended by the learned counsel for appellant, that before passing an allotment order in favour of respondents as the plot in question stood allotted to the appellant in 1990, therefore, it was enjoined upon the allotting authority to provide the appellant with an opportunity of being heard. It was also contended that the Chairman M.D.A. alone was not competent to make the allotment in favour of respondents. The above contentions of the learned counsel for the appellant have a substance.

9. We tray also observe that the allotment made in favour of appellant was also made by the Chairman M.D.A. in 1990. The Chairman M.D.A. alone had "no jurisdictional competence to allot the plot to the appellant either. However, the fact remains that he had been striving hard for getting the allotment of plot in question for which he duly applied and deposited the earnest amount. The subordinate staff had been making various reports in favour of appellant for the allotment of plot in question. Therefore, he being an aggrieved person was competent to file the writ petition against respondents and before making the allotment in favour of respondents an opportunity of being heard should have been provided by the allotting authorities to the appellant.

10. In a case reported as Mst. Walayat Begum v. Revising Authority M.D.A. and 3 others 1999 MLD 1549 while discussing the scope of section 27 of the M.D.A. Ordinance, it was observed by this Court at page 226 as follows:‑‑ "The aforesaid provisions postulate that the Authority is vested with the power to constitute an allotment Committee consisting of such number of members as may be determined with the approval of the Government. The Allotment Committee constituted by the Authority has all the powers of allotment exercisable by the Authority under the provisions of the Act or the Rules of Regulations framed thereunder. The Allotment Committee may further delegate its powers of Sub‑Allotment Committee consisting of not less than three ~of its members. This shows positively that the Allotment Committee cannot delegate its powers to the Chairman. The only Authority given to the Allotment Committee under subsection (5) of section 48 of M.D.A. Ordinance, 1974, is to delegate its powers to Sub‑Allotment Committee. Therefore, the Chairman is not vested with any power of allotment. "

11. In this view of the matter the impugned allotment in favour of respondents having been made by the Chairman M.D.A. alone is not sustainable. Therefore, by setting aside the impugned judgment of the High Court, we direct the M.D.A. Allotment Committee to hear the appellant as well as the respondents and to decide the question of allotment of plot in dispute afresh in accordance with law on the basis of entitlement, In the circumstances of the case we pass no order as to costs. H. B. T. /9/S