1983 PLP 649 (CLC)

It was under the order of the President as indicated above that allotment order was made by the Secretary, Mangla Dam Affairs to the effect that the President was pleased to make allotment of Plot No. `B' measuring two Kanals vide Order No. Mangla/1233/72, dated 14-10-1972. By this very order measurement of the plot was ordered to be made on spot and its possession thereof was to be delivered to the allottee after realization of the price of the plot. This order of allotment was followed by another order of allotment by the Allotment Committee vide temporary allotment order dated 29-4-1973 in pursuance of which price of the plot was deposited by the allottee. The original allottee Zahoor-ul-Haq is no longer alive. On his death his legal representatives namely Subedar Major Afif Din, Mst. Kalsoom Begum, Muhammad Saif-ul-Haq, Mst. Zahid-un-Nissa, best. Robeena Kousar. Mst. Ghazala, Mst. Rukhsana, Mst. Nazia and Mst. Shamaila were brought on record as petitioners substituted in his place. The allottee had to file this writ petition against the Development Authority as the latter was not allowing to the former to take advantage of the allotments as the Development Authority itself wanted to raise shops on the northern side of the Stadium including the plot in question facing the Hall Road and so a prayer was made to this Court to restrain the Develop ment Authority from creating obstruction in the way of the petitioner over the plot in writ. In answer to the writ petition it was submitted by the respondents that the allotments of the plot were not validly made as this portion of the land is a part of the Stadium which could not be made available for allotments. Moreover, the allotments claimed by the petitioner in respect of the plot in hand stand cancelled by Notification No. Mangla-3726/73, dated 4-12-1973 issued by the Government. The authority of the Government in cancelling the allotments in general is not questioned under law. Nevertheless, it was averred that the allotments in question are not covered by the main Noti fication. In pursuance of the aforesaid Notification an order under section 2 of the Azad Kashmir Emergency Powers Act, 1958 read with Government Order No. 17505/10/SG/58 was made by the District Magistrate prohibiting those allottees whose allotments were cancelled, from raising any constructions on the plots so cancelled by the said Notification. A list of such plots was attached with the order issued by the District Magistrate. This list does not contain the allotments in question before me. The omission of the plot in question from the list maintained by the office of the District Magistrate was taken as having spelt out that the allotment made by the Committee is excluded from the order of the Government contained m the Notification, and it was further contended by the learned counsel for the petitioners that the allotment in question was not cancelled by the Government though the allotments made by the Allotment Committee were cancalled and not the allotments made by any other authority. This is true that allotments only made by the Allotment Committee were cancelled by the Government which were made from July i, 1972 to December 4, 1973. This was a wholesale cancellation of allotments without any discrimination, whatsoever. This list cannot be taken as having contained all those allotments which were cancelled by the said Notification. The circumstances indicate that there was no apprehension to the District Magistrate to have included the plot in question that there was any construction going to be raised or erected on the plot allotted to the minor son of petitioner No.

1. The District Magistrate must have prepared the list of those allotments taken as cancelled over which there had been apprehension of the constructions to be illegally raised thereby necessitating an order to be made under the aforesaid provision of law and that list, thus cannot conclusively be taken as complete so as to show all the allotments therein which were cancelled by the aforementioned Notification. There are two allotment orders of the plot in dispute one by the President and the second one by the Committee. The allotment herein made by the Committee obviously stands cancelled by the Notification. Therefore, allotment of the plot in dispute made by the Allotment Committee is no longer in existence in law on the basis of which a case for invoking writ jurisdiction of the High Court can be made out. Besides, the relevant rules and orders relating to the allotments of plot reserved in Sector F-2 at the relevant time make it abundantly clear that a special Allotment Committee set up by the Government as required by law, vide New l Mirpur Town (Allotment of Land) Act, 1964, under the Chairmanship of Senior Secretary i.e. Chief Secretary was to make allotments including the) allotment of the plot in question, if available for allotment. But no allotment of the plot was made by the Special Committee. There is an application in the file of allotments itself addressed to the Chief Secretary by Zahoor-ul-Haq himself indicating therein that the allotment claimed was within the exclusive competence of the Special Committee referred to above and not within the powers of any other authori ties including the Ordinary Committee of allotment headed by the Deputy Commissioner and this was the Allotment Committee chaired by the Deputy Commissioner, that the impugned allotment was made in the name of the deceased-petitioner and so also it would be deemed that allotment in question made by the Ordinary Committee was not validly made for being without jurisdiction and as such the impugned allotment by the Committee is no allotment in the eye of law for the plot claimed and otherwise too it stands cancelled as pointed out earlier. Again, we see that the Government or the President was not herein an allotting authority and that is quite obvious. It was why that second allotment was obtained by the petitioner otherwise what was the need of obtaining a second allotment in presence of the order of allotment by the Government or the President, as the case may be, if competently made and that being the authority high. An authority, howsoever high may be, cannot act without powers conferred upon it by law. Here, the Government and the President both lacked powers of making allotments of plots under the law concerned. The New Mirpur Town (Allotment of Land) Act, 1964 relating to the procedure etc. of the allotments does not confer any powers of allotting the plots in the Town of Mirpur and the townships thereto on the Government or the President, as the case may be. Therefore, question of delegation of powers by an authority to an authority subordinate to it, does not, of course, mean that the delegating authority is divested or denuded of its powers originally to be exercised by it. But here the Government or the President have had no delegating powers under the provisions of the Law contained in the aforesaid Act. The Allotment Committee is shown here as a delegating authority which can delegate its powers to its Chairman for exercise of the same alone. But no such position of delegation of powers either by the Government or the President could have arisen in context of the relevant law concerning and governing allotments of plots in the Town of Mirpur and the affiliated hamlets thereto. The site plan of the Stadium evidently shows that the plot marked in question is spread over a large area which straightly goes into the Stadium affecting it adversely and so also, no part of the Stadium could as a rule be made available for allotment to an individual i.e. to a private person at the cost of the utility of the Stadium to be enjoyed by the public at large. That being so, this writ petition is destitute of any legal foundation and is dismissed. K. M. A. Petition dismissed.