1996 PLP 1464 (CLC)

While rejecting the writ petition the High Court held that Plot No.25, although marked on a corner, was on a single road which ended at the end of the plot and thus it was not a corner plot. The learned Judge expressed the view that corner plot is one which touches at least two roads, one on the front and other on its side. The learned Judge also observed: that Capital Development Authority also defines a corner plot in the same way. It is observed in the judgment under appeal that the land adjacent to the plot in dispute was rejected or open place and could be utilized for any useful purpose. The argument raised before the High Court that Plot No. 25‑A/1 had been created by the Town Planner and not by the Mirpur Development Authority Board was rejected by the High Court on the ground that it was not substantiated by any proof. Dealing with the argument that respondent No.4 was not entitled to the allotment of any plot because two plots already stood allotted to him, the learned Judge observed that it was a settled law that a person having a previous allotment in his name is disentitled to further allotment but proceeded to hold that the petitioner was not an aggrieved person in respect of the allotment made in favour of respondent Muhammad Fazal because he himself also holds an allotment in his name and for that reason could not obtain allotment of another .plot. It was observed that his grievance was only to the marking of a new plot. It was argued by the learned counsel for the appellant that the High Court fell in error in laying down the definiti6n of corner plot because, as contended, this is the function of the Mirpur Development Authority and not of a Court of law. It was also pointed out that the observation in the judgment under appeal that the Capital Development Authority also defines a corner plot in a way as the learned Judge has done is not well‑founded because the definition, if any, of a corner plot as adopted by the Capital Development Authority cannot be made applicable here. It was also pointed out that the definition had not been reproduced in the judgment and was in fact not before the Court. It was vehemently contended by the learned counsel that the Mirpur Development Authority declared the plot as a corner plot in the documents mentioned above and also received an additional amount from the appellant on account of its position in the year 1983 and cannot be allowed to turn round, after eleven years, to take the position that it was not a corner plot. It was pleaded on behalf of the appellant that the plot is situated on the corner of a road and was, therefore, in any case a corner plot. The learned counsel for the private respondent contended that corner plot is a plot which is situated on the corner of two road or streets and that the High Court was, therefore, right in holding that it was not a corner plot. The learned counsel relied on a No‑Objection Certificate issued by the Mirpur Development Authority in favour of the appellant for the purpose of obtaining loan by mortgaging Plot No.25 allotted to appellant and pointed out that the plot was not shown as a corner plot in document. In our view it is not for the High Court or this Court, particularly in exercise of writ jurisdiction, to lay down the definition of a corner plot. In our considered view the Mirpur Development Authority is estopped from adopting the position that Plot No.25 was not corner plot in view of the admitted fact that it declared at the time of allotment that the plot under reference was a corner plot and also received extra amount in lieu thereof. It is also an admitted position that the Mirpur Development Authority did not make any conscious attempt to change the status of the plot from a corner plot to an ordinary plot but only created Plot No.25/A‑1 arbitrarily and unilaterally. without noticing the fact that an additional amount had been received on the specific representation made by the Authority that it was a corner plot. The appellant accepted it and then acted upon it. It clearly follows that the Authority is estopped from adopting a different position. When the plot was allotted to the appellant as a corner plot a right became vested in him to enjoy the advantage that there will be no plot on one side of the plot. That advantage has been taken away. In this situation the appellant is an aggrieved person and has a right to invoke the Constitutional jurisdiction of the High Court to challenge the alteration being carried out in the plan of the area. Facts were almost similar in well‑known case of Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 Lah. 223). Lahore Improvement Trust formulated a town improvement scheme and land was earmarked for the construction of houses and a public market. This induced the appellant before the Supreme Court of Pakistan to purchase a piece of land opposite of the market in the hope to open a shop there. Subsequently the scheme was altered and the said appellant was deprived of the facility he had hoped for. The Supreme Court of Pakistan held that deprivations of such a facility would confer a sufficiently valuable right upon the residents of the scheme area to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the scheme as sanctioned by the Government. We are of the view that the fact that a facility of privilege which the appellant obtained in lieu of additional payment cannot be withdrawn by the B Mirpur Development Authority and this in itself should suffice to declare that the creation of Plot No .25‑A/1 to be without jurisdiction and of no legal effect. However, there are other points also which have been raised to impugn the creation of plot mentioned above and its allotment in favour of respondent Muhammad Fazal to which now we advert. One of the points raised before the High Court was that new plot was created without lawful authority because changes in Master Plan could only be sanctioned by the Mirpur Development Authority. This legal position has been accepted in the judgment under appeal by making the following observation:‑‑ "So far as the other point raised by the learned counsel for the petitioner with regard to the marking of a new plot by the respondents, is concerned, it may be clarified that the Mirpur Development Authority Board known as Authority is competent to mark only plot on its land provided the planning requires so under the M.D.A. Act." However, the learned Judge repelled this objection on the ground that the allegation that plot had been created without the sanction of Mirpur Development Authority was not substantiated by any proof. Certified copy of the amended plan is on the file. It does not show the authority under which it was approved. However, the document placed' as Annexure "D/2" throws light on how the plot was created. There is undated note by an Overseer which translated in English reads as follows:‑‑ "In pursuance of the verbal directions by the Town Planner. Plot No.25‑A/ 1, measuring 90' x 40' situated in Sector D‑3 West Part 1, has been suggested as an alternative plot. Plot has been marked at the dead end and is a vacant side. The proposed plot does not affect the size of other plots and also does not affect any installation. Submitted for further orders. " This note is followed by the following note by the Town Planner which also does not carry any date: "The report is in accordance with the situation on the ground. Further proceedings can be taken. Report is submitted for proper action." It is not known as to what happened after that. It was stated in ground No.(ii) in para.9 of the writ petition that only Mirpur Development Authority was competent to change or alter the approved plan but the authority had not approved the creation of the Plot No.25‑A/1. This assertion was backed by an affidavit sworn by appellant Jamil Akhtar. In reply to it, the averment in the joint written statement filed by respondents was that sub‑para. (ii) was not correct. This is an evasive denial. Apart from that no affidavit was filed by any functionary of the Mirpur Development Authority in support of that assertion. Only respondent Sajjad Hussain filed affidavit. He is the person to whom the plot in dispute was subsequently transferred. Therefore, his affidavit on this point is of no legal value. The contents of Annexure D/2 mentioned above clearly show that plot was created by the Overseer on the verbal instruction of the Town Planner. Mirpur Development Authority did not C file any document to prove that changes have been sanctioned by the Board of Mirpur Development Authority. Therefore, . it has to be accepted that Plot No.2‑A/1 was not created by the approval of the Board of Mirpur Development Authority which, according to the judgment under appeal, is the authority which could do so. In the judgment under appeal this position has been accepted to be correct that one person cannot be allotted more than one plot in Mirpur arid adjoining Hamlets. The bar is laid down in clause (e) of Regulation 8 of the Mirpur Development Authority Regulations for Development and Disposal of Estates, 1977. The objection of double allotment was rejected by the High Court as the petitioner was not an aggrieved party because Plot No.25 already stands allotted to him and he cannot secure another allotment. Since the points already resolved above have resulted in acceptance of the appeal we need not go into this question. However, it may be observed that it is not legally proper performance of duty on behalf of the Mirpur Development Authority that a plot was created without proper sanction for allotment to a person who was not eligible for allotment of a plot. It follows that an illegality was committed by the Mirpur Development Authority by allotting another plot to Muhammad Fazal in clear violation of the regulation mentioned above. Consequently we set aside the order passed by the High Court and order the acceptance of the writ petition. As a result thereof creation and allotment of Plot No.25/A‑1 Sub‑Sector, D‑3 Mirpur are declared to be acts without lawful authority and of no legal effect. Similarly subsequent transfer of Plot No.25‑A/1 in favour of Sajjad Hussain respondent No.5 is also declared to be void. The parties are left to bear their own costs. , A.A./116/SC(AJ&K) Appeal accepted.