2000 PLP 2252 (YLR)

BASHARAT AHMAD SHAIKH, J.‑‑‑Appellant Bagh Hussain filed a writ petition in the High Court which has been dismissed. He has filed the present appeal with leave of the Court.

2. In the writ petition Bagh Hussain made the following averments. He was a refugee of 1965 and, having no shelter, constructed two rooms in sub-sector C‑3 and started living therein alongwith his family. In 1977 a notice was given to him by the Assistant Engineer of the Municipal Committee through which he was ordered to demolish the room constructed by him in Plot No. 97/2 adjacent to Plot No.

132. Photocopy was attached as Annexure‑A. Again on 15th October, 1980 a notice was sent to him by the Estate Officer of the Mirpur Development Authority in which it was stated that under a policy decision Bagh Hussain was to be ejected from the illegal construction, in Sector C‑3 but it had been decided to consider his name for allotment of a five Marlas plot in Chattarpari. These two documents were filed to show that his illegal construction was of a date prior to 30th June, 1981, the date which is mentioned in Regulation No.16 of the Mirpur Municipal Committee, Regulations for Development and Disposal of Plots/Estates, 1985. The Regulation No.16 reads as follows: ‑‑ "

16. Regulation of encroachment etc.‑‑The Chairman may regularise 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 area 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 effected 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."

3. It was then averred in the writ petition that he filed an application for regularization of his encroachment when applications were invited for that purpose. Certified copy of the application filed by Bagh Hussain is available in the High Court file it was filed on 23rd January, 1986. It was further averred in the writ petition that although he fulfilled all the qualifications mentioned in Regulation No.16 yet the land in dispute was not allotted to him and instead allotment was made in favour of Muhammad Azam son of Muhammad Sadiq and it was shown that it had been allotted in 1974. It was stated in the writ petition that although Plot No.93/W was shown to have been allotted in 1974 its price was deposited on 26th March, 1987.

4. It was also alleged in the writ petition that in fact the application was filed by Khadim Hussain son of Muhammad Sadiq but the application form was interpolated to enter the name of Muhammad Azam in place of Khadim Hussain and subsequently plot under reference is shown to have been allotted to Muhammad Azam. It was also alleged that in fact Plot No.93/U was allotted but the plot number was subsequently changed to make it as Plot No.93/U. He submitted that the allotment of Plot No.93/W is a result of forgery and interpolation.

5. The allotment order was passed in 1974 and balance price was deposited on 26th March, 1987 but the writ petition was filed on 30th September, 1998. It was submitted that real facts had come to the notice of the writ petitioner a few days earlier. It was stated that delay, if any, in filing of the writ petition, may be condoned.

6. The High Court has rejected the writ petition filed by appellant Bagh Hussain on the ground that Regulation No.16 reproduced above had already been declared unconstitutional by the High Court in a case titled Muhammad Yunus v. Chairman, Municipal Committee, decided on 9th June, 1999.

7. With the assistance of the learned counsel for the appellant, Raja Muhammad Siddique, we have gone through the documents attached with the writ petition. In light of the arguments advanced by the learned counsel for the appellant and the attorney for respondent No.5, Sardar Khalil Ahmad, who is now the transferee of the plot in dispute. The first point which needs to be resolved is whether the plot was allotted to Muhammad Azam in 1974. Raja Muhammad Siddique firstly pointed out the interpolation in the application form on the basis of which Plot No.93/W measuring five Marlas in sub-sector C‑3 was allotted to Muhammad Azam. We have seen copy of the application. The application was filed on 14th November, 1974 on behalf of Muhammad Azam through Ch. Muhammad Hussain, Advocate. The name of the applicant was originally written as Muhammad Azam son of Ch. Muhammad Sadiq but the words "Ch. Khadim Hussain" were struck off and were substituted by the words "Muhammad Azam". Father's name remained the same. In the column meant for proceedings of the Allotment Committee it is written that Plot No.93/W in Sector C‑3 was allotted by the Allotment Committee in its meeting held on 9th December, 1974. The letter "W" seems to have been changed for some other letter which according to the version of the appellant was originally "U". The learned counsel for the appellant wanted us to reach the conclusion that the two changes mentioned above amounted to forgery. We may firstly point out that every addition or alteration is not forgery. Whenever there is cutting or overwriting it is not fair to rush to the conclusion that there has been forgery or tampering. Each such matter has to be examined with care to reach a correct conclusion. We have carefully seen the record of the present case and it is proved that there was neither any forgery nor interpolation as alleged by the appellant. At the bottom of the application meant for signatures of the applicant's name "Muhammad Azam" is written without any alteration or cutting. Copy of the minutes of the meeting of the Allotment Committee held on 9th December, 1974 forms part of the High Court file. The record shows that meeting of the Allotment Committee was held under the Chairmanship of Sardar Muhammad Habib Khan, Additional Chief Secretary, and was attended by its members including Mr. Abdul Majid Salehria and Sardar Muhammad Ashraf Khan. It is recorded in the minutes that Plot No.93/W in Sub-sector C‑3 was allotted to Muhammad Azam son of Muhammad Sadiq on the basis of his application carrying Serial No.3437. It is the same number which is shown in certified copy of the application form. This document clearly shows that the Plot No.93/U was duly allotted to Muhammad Azam by the Allotment Committee.

8. The appellant's case is rested on Regulation No. 16 which has been reproduced above. It came into force in 1985 while the allotment in favour of Muhammad Azam, as seen above, was made in 1974. Therefore, there is no question that appellant Bagh Hussain could derive benefit from Regulation No.16 which does not visualise regularisation of any encroachment made on an allotted plot. In our opinion clearly the said provision did not have the effect of cancelling the allotment made eleven years ago. Therefore, Regulation No. 16 is of no help to the appellant.

9. Having reached the conclusion that Regulation No. 16 did not apply to the appellant, the question whether the said Regulation was unconstitutional, as held by the High Court, remains of academic interest. As a settled practice this Court does not enter into academic questions. Even otherwise Raja Muhammad Siddique only briefly dealt with this aspect of the case. The High Court declared it as unconstitutional but we need not go into this question and we leave it to be decided in a case in which it becomes necessary to do so.

10. Before taking leave of the case we have to attend to a small point raised by Raja Muhammad Siddique. It was stated by the learned counsel that there was nothing on the file to show that Plot No.93/W allotted to Muhammad Azam was the same place which had been encroached upon by appellant Bagh Hussain but we find from contents of the writ petition filed by Bagh Hussain that no such doubt was expressed in the writ petition. In fact Bagh Hussain by necessary implication admitted that the place was the same otherwise there was no point in filing a writ petition against allotment of Plot No.93/W. The matter is further clarified when we see that in para. 9 of the writ petition it is specifically stated that the allottee was trying through Mirpur Development Authority to get the construction raised by him (Bagh Hussain) demolished. He attached one of the demolition notice sent to him by the Municipal Magistrate on 7th September, 1998 as a proof of the abovementioned averment. Consequently, finding no force in it we dismiss the appeal with costs. H.B.T./92‑SC(AJ&K) Appeal dismissed.