2000 PLP 2050 (YLR)

BASHARAT AHMAD SHAIKH, J.‑‑‑Appellant Riaz Ahmad is allottee of Plot No. 327‑B measuring 10 marlas situated in sub‑sector F‑3 Mirpur City. The appellant has been in possession of the plot allotted to him and, as is un-denied, has constructed boundary wall with due permission. He filed a writ petition in the High Court in which he stated that it had come to his knowledge that the functionaries of the Mirpur Development Authority had illegally changed the sector plan in order to create two new plots, namely, Plot Nos. 327‑A/1 and 327‑A/2 over the land where Plot Nos.327‑B, allotted to the appellant, and Plot No: 327‑A were situated. He challenged the authority of the respondents to change the sector plan and to create new plots over the land which already stood allotted to the appellant. The writ petition has been dismissed. In the judgment under appeal it has been noted that Estate Officer of Mirpur Development was summoned for ascertaining whether Plots Nos.327‑A/1 and 327‑A/2 were created over the land where Plots Nos. 327‑A and 327‑B were situated and that the Estate Officer and Town Planner appeared in the High Court and produced the relevant map alongwith a written report. According to the judgment under appeal it was clear from the map produced in the Court that new plots had not been created over the land, which was previously allotted. It was also observed as follows:‑-- "Even otherwise, it is a disputed question of fact which could not be resolved‑ without recording an appreciation of evidence. This Court in its extraordinary jurisdiction shall not record the evidence and shall also not embark upon the appreciation of evidence."

2. Before proceeding further we may observe that the passage reproduced above does not reflect the correct legal position. We notice that under section 44 of the Mirpur Development Authority Ordinance jurisdiction of Courts is barred in respect, of all actions of the Mirpur Development Authority. Section44 runs as follows: ‑‑‑ "Jurisdiction of Courts barred. Save as otherwise provided by this Ordinance or by the Azad Jammu and Kashmir Government Act, 1970: as amended, no Court or other authority shall have jurisdiction to question the legality of anything done or any action taken under this Ordinance by or at the instance of the Authority."

3. In view of the bar of jurisdiction contained in the provision reproduced above the only safe remedy available to an aggrieved person is to file a writ petition to challenge the actions of the Mirpur Development Authority or any of its functionaries. Therefore, the doors of the High, Court have to be kept upon to grant relief to the aggrieved persons and if any questions of fact is involved it is the duty of the High Court to record evidence, where necessary, and also to embark upon appreciation of evidence. There is plethora of judgments of this Court as well as of the High Court on this point but it should suffice to reproduce rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 which specifically lays down that all necessary questions shall be decided after recording of evidence. Rule 38 runs as follows: ‑‑‑ "

38. All questions arising for determination under rules 31 to 36 shall be decided ordinarily upon affidavits and documents but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deemed fit and in that case it may follow such procedure and may pass such order as may appear to it to be just." It may also be pointed out that the learned Judge himself ordered the Estate Officer to appear before the Court to produce the relevant map and when the map was produced before the learned Judge he not only examined it but also recorded a finding against the present appellant.

4. Now we come to the question whether Plot No. 327‑A/1 and Plot No.327‑A/2, hereinafter called the new plots, were created over the same land which was tender Plots Nos. 327‑A and 327‑B, hereinafter called the old plots. After perusal of the pleadings of the parties we are of the view that it is hardly a disputed question.

5. Para. 4 of the writ petition was as follows:‑‑ "

4. That, on the Southern side of the plot of the petitioner, there is situated Plot No. 327‑A, on the Eastern side is a 30 ft. wide road and on the Western side of the plot is a Nallah. Plot No. 327‑A is situated at the junction of two roads, on the third side is a Nallah as is evident from the sector plan annexure P‑6." Para. 4 was accepted by the Mirpur Development Authority .and other official respondents as "factual". Private respondent No.5 Khadim Hussain also accepted it as "factual".

6. Par‑a. 5 of the writ petition was as follows: ‑‑‑ "

5. That, recently, it came in the knowledge of the petitioner that the respondents have illegally changed the sector plan and have created Plots Nos. 327‑A/1 and 327‑A/2 and have allotted these plots to respondents Nos. 4 and 5 on 16‑12‑1997. The plots are shown to have been created and allotted at the place where Plots Nos. 327‑A and 327‑B are situated. And respondent No.5, in the guise of fictitious and illegal order, wants to interfere in the possession of the petitioner. Copies of temporary allotment order, possession chit, notice of intimation, application for N.O.C., notice of intimation are attached herewith as Annexures P‑8 to P‑12." The reply of the official respondents was as follows:‑‑‑ "

5. That the para. No. 5 of the writ petition is incorrect. The allotment of the respondent according to law. MDA has got the power to allot the plot. The petitioner therefore has no cause of action at all. " It will be seen that although para. 5 was described as incorrect but it was not contradicted in the explanation which followed it. It was claimed that the Mirpur Development Authority had the power to allot the plot and that the writ petitioner had no cause of action. The reply was vague and it was not specifically denied that new plots were created over the land where old plots already existed. The reply of respondent No.5 Khadim Hussain was somewhat differently worded but he also did not deny the averment made in para.

5. The reply of Khadim Hussain is as follows:‑‑‑ "

5. That para. No.5 of writ petition is baseless and incorrect. The sector plan is not which the petitioner relies on an Annexure P‑

6. But it is attached herewith as Annexure‑5 and it is very clear and obvious in rule 5 that there are a lot of plots. Some of them have been constructed in the same row. The allotment of Plot No.327‑A/1 and the allotment of respondents was made according to the laws and regulations of MDA and all the rest of proceedings taken were within the ambit of law and regulations. "

7. The pleadings are sufficient to prove the point, but the official maps furnish further proof. The original part plan as well as the revised part plan forms part of the writ petition. They are all official documents prepared by the functionaries of the Mirpur Development Authority. The part plan available on page 51 of the High Court file clearly shows that the old plots have been shifted from its original location and their new location is different. Other part plans available in the file also show the same, fact. In light of the averments as well as the part plans it is clear that the old plots have been shifted in order to create the new plots.

8. It was specifically pleaded by .the appellant in his writ petition that the changes mentioned above had not been approved by the Mirpur Development Authority. It was also submitted that a change in the sector plan could only be made by the Mirpur Development Authority. It was further stated that an Overseer, Estate Officer or Chairman of Mirpur Development Authority are not empowered to change the sector plan. Another point was that once a plot has been allotted at a particular place no new plot can be created and allotted on the same location. The respondents have been unable to meet these contentions. The learned counsel for the appellant, Mr. Muhammad Azam Khan; stated that on the part plan available at page 51 of the High Court file shows that nobody has approved the said part plan. It shows as to who were the persons who traced it, planned it, and checked it but the column meant for approval is blank. The learned counsel for Mirpur Development Authority and the learned counsel for the private respondent were unable to show that the Mirpur Development Authority had approved the part plan and the changes brought about in the sector plan. The conclusion. is that the impugned changes lack necessary approval.

9. It follows that the High Court fell in error in dismissing the writ petition. The appellant has been able to prove from the High Court file that the plot allotted to him has been shifted without lawful Authority. Therefore, the shifting of the plot belonging to the appellant is quashed. The appellant shall be entitled to retain the same land which already stood marked as Plot No. 327‑B. All contrary actions are declared illegal. The appeal is, therefore, accepted, the judgment of the High Court is vacated and the writ petition filed by the present appellant is accepted to the terms as indicated above. H.B.T./91/SC(AJ&K) Appeal accepted.