2013 PLP 734 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeal with the leave of the Court is filed against the judgment of the High Court dated 31-12-2011 whereby writ petition filed by the appellants has been accepted to the extent that the respondents are duty bound to deliver possession of the disputed Plot No.27-A, sub-sector D/3 (West-1), Mirpur to the legal heirs of allottee and if delivery of possession is not possible, the respondents are duty bound to adjust the legal heirs of allottee by allotting them an alternate plot.

2. Necessary facts giving rise to this appeal are that Plot No.27-A measuring 45x90 ft. in sub-sector D/3 (West 1) Mirpur was allotted to the father of the appellants in lieu of Plot No.177 Sector D/4 (West 1), which was initially allotted to father of the appellants. This plot was cancelled along with other plots but later on, it was revised on 20-8-1994 and the basic allotment was upheld. The father of the appellants deposited total price of the said plot on 25-2-2005, since then he has been approaching the officials/respondents to obtain possession of the plot but they have failed to perform their lawful duty. Subsequently, the father of the appellants has also been died. The petitioners prayed that:

"the writ petition may kindly be accepted and respondents may be directed to issue the possession chit of plot under writ to the petitioners in accordance with law of the land and they may also be directed to compensate the petitioners for mental torture and long agony faced by petitioners keeping in view enhanced costs of the construction material." The respondents resisted the writ petition through written statement stating therein that the appellants have got no cause of action and the writ petition is not maintainable in the present shape and is hit by the doctrine of laches. Some other objections have also been raised by the respondents. The learned High Court, accepted the writ petition in the terms indicated in para 1, hereinabove.

3. Mr. Liaqat Ali Khan Advocate, the learned counsel for the petitioners, after explanation of detailed facts, challenged the judgment of the High Court on the ground that the same is against law and facts of the case. He submitted that Plot No.27-A measuring 45x90 ft. situated in sub-sector D/3 (West-1) Mirpur, was allotted to the father of the appellants in lieu of Plot No.177 situated in sector D/4 (West-1), Mirpur. The allotment of this plot was cancelled along with other plots but later on, it was revised on 20-8-1994 while upholding the basic allotment. He submitted that the father of the appellants deposited the total price of the said plot on 25-2-2005, since then, the appellants are approaching the officials/respondents to obtain the possession of plot but the same has not been handed over to them. He further contended that the direction of the High Court to the extent of adjustment of the appellants by allotment of alternate plot is not justified. He further argued that the appellants cannot be deprived of their right of property whereas the learned High Court has failed to appreciate the constitutional provision in its true perspective. Neither the possession of plot has been handed over to the appellants nor an adequate compensation has been awarded, therefore, the Judgment of the High Court is liable to be set aside.

4. We have heard the learned counsel for the appellants. Due to ex parte proceedings against the respondents, we have minutely gone through the record. The factual proposition involved in this case is not disputed by any of the parties. The appellant's claim for allotment of the plot has been admitted by the respondents in their written statements. The use of allotted plot for the public purpose of "Mangla Upraising and dual carriage road", has also been admitted by the respondents. Thus, according to admitted facts, the clear picture emerges that the plot in issue has been validly allotted to the appellants which has been brought in use for the public purpose of Mangla Upraising and dual carriage road. The High Court, in the light of these admitted facts, issued the writ with the direction that the respondents are bound to deliver possession of the disputed Plot No.27-A sub-sector D/3 (West 1) Mirpur, to the legal heirs of the allottee. As alternate directed that:

"... If delivery of possession is not possible, the respondents are duty bound as well to adjust the legal heirs of allottee by allotting them an alternate plot." These findings of the High Court have attained finality against the respondents as they have not challenged the same. Now the appellants's grievance is only to the extent that either they should be handed over the possession of actual allotted plot or should be paid compensation and the direction of the High Court to the extent of adjustment of the appellants by allotment of an alternate plot is not justified.

5. According to the admitted position, the right of property regarding the plot in dispute has not only been admitted but to this extent, the findings of the High Court have also attained finality. Thus, it hardly requires any further deliberation to hold that the appellants are the owners of the plot. The right of property is one of the constitutionally guaranteed fundamental rights, especially Right No. 14 enshrined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, which speaks as following:

"

14. Protection of property.

(1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof and either fixes the amount of compensation or specifies the principles on which end manner in which compensation is to be determined and given. (3) Nothing in this paragraph shall affect the validity of

(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or (b) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be evacuee property under any law; or (c) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or (d) any law providing for the taking over of the management of any property by the Government for a limited period, either in the public interest or in order to secure the proper management of property, or for the benefit of its owner; or (e) any law providing for the acquisition of any class of property for the purpose of

(i) Providing education and medical aid to all or any specified class of State Subjects, or (ii) providing housing and public facilities and service such as roads, water supply, sewerage, gas and electric power to all or any specified class of State Subjects; or (iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old-age, are unable to maintain themselves; or (f) any law in force immediately before the coming into force of this Act." A bare reading of this statutory provision clearly speaks that no person can be deprived of the right of property save in accordance with law. The law has provided an unambiguous mechanism that it any property is required for the public purpose, then the owner of such property will have to be compensated by payment of adequate compensation and for determination of compensation, a comprehensive method has been prescribed in the Land Acquisition Act, enforced in the Azad Jammu and Kashmir. There remains no ambiguity that the compensation means the market value of the property prevailing at the time of its acquisition/bringing in use for public purpose. In the light of these statutory provisions, the claim of the appellants appear to be quite justified and the impugned judgment of the High Court, its this perspective requires modification.

7. According to spirit of law, any owner of the property, whose property has been acquired for public purpose, cannot be forced to agree for alternate adjustment of the property. He will have to be paid an adequate compensation determined according to law. However, if any property owner, out of his free will, by negotiation, agrees for exchange of property or alternate adjustment, the law does not prohibit such adjustment. In this case, the appellants do not agree with alternate adjustment/exchange of the immovable property, therefore, they deserve for adequate compensation, determined according to law. Therefore, while accepting this appeal, the impugned judgment stands modified in the terms that if delivery of possession of the allotted plot is not possible, the respondents will have to pay the appellants adequate compensation determined according to law. With these observations, this appeal stands disposed of. SAK/16/SC(AJ&K) Appeal disposed of.