1980PLC 198 (PLP)

(c) Whether the Government was competent to cancel the allot ment made by the Allotment Committee after the expiry of period of appeal provided under section 7 of the Act. (d) Whether the Chairman of the Allotment Committee after valid cancellation of the allotment could review the allotment in favour of the petitioners. Mr. Muhammad Sharif Tariq, the learned Advocate for the appellant has raised the following contentions :- (1) That writ petition was not competent as the respondents. can. not be said to be aggrieved persons to invoke the extraordinary Writ jurisdiction of the High Court as their vested rights have not been infringed by the allotment ; (2) That the scheme as contemplated under section 9 of the Act as held by the High Court was not a condition by precedent, for a valid allotment and in any event a valid scheme was prepared before the allotment. (3) That the cancellation of the allotment by the Government or the Chairman, Mirpur Development Authority was income. tent as under section 10 of the Act, the cancellation can be made only by the Committee and not by the Government and that too in case payment of instalments or dues is not made. (4) That the site. under the allotment is not an open space. We have given our considered thought to the points argued. The validity of the argument of the learned counsel shall be determined in resolving the questions as to whether the land under the plots was an open space; and if so whether it was available for allotment ; and if the answer to both or any one of the above questions is in affirmative, whether the respondents can be said to be aggrieved persons competent to file the writ petition. The disputed fact of `open space' remained subject of an enquiry before the High Court. The parties led evidence in support of their respective contentions. The documentary evidence tendered by the respondents tends to show that the land in dispute is an open space left for the use of, the residents of Mohallah and so it was not available for allotment. To counter this, the appellants exhibited documents to show that the site under the disputed plots is not an open space. Ch. Mahboob Ellahi, the Executive Engineer and Jamal Din were examined as witnesses by the respondents to show that the site marked as Plots 48-A and 48-B is an open space not available for allotment. Mahboob Elabi P. W. on the basis of the relevant map stated that the land under the plots was marked as open space which could not be allotted to any person. It was further disclosed by him and Jamal Din, that the price of the open spaces was realised collectively from the people alongwith the price of the plots allotted to the individuals. As against this, the witnesses by the respondent were examined to show that it is a vacant space and not on open space. Bu: this evidence loses all impor tance in view of the statement of Ch. Farman Ali, a witness examined by 'Esc respondent, who at the very outset, in his statement, admits that the land is an open space but, according to hire it was still available for allotment, for its being Government property. The statement of Ch. Farman Ali, sets the matter at rest that it was an own space and thus the only moo: point which remains to be resolved is as to whether the open spaces can be allotted. On the scrape the statements of Mahboob Elahi, and Jamal Din duly supported by the plan of the town prepared by town planner and the other relevant record produced before the High Court, to prove that the land in dispute is an open apace not available for allotment ring true. We, therefore, on the basis of their say, of the view that the scheme of the town forbade the allotment of open spaces for which the payment had already been made by all the allottees of the plots and such spaces had assumed the character of common property. In view of this pronouncement in the relevant record we have nothing to disagree with the learned judge of the High Court that the site under plots was an open space not available for allotment. We way nosy advert, to examine the validity of the argument that the respondents were not aggrieved party competent to file the writ petition. The argument to us is without foundation. The learned Counsel seems to be labouring under a misconception that only a person whose 'jested fights have been directly invaded by an action can be termed as an aggrieved person. But in our view it is not necessary tine a person invoking writ jurisdiction should have a juristic right. It is sufficient if he successfully establishes that he has an existing right to assail an order which is illegal and adversely affects his rights whatever they may be. In this view of the matter if an act is without lawful authority, and a person is adversely affected by such an Act, he can seek declaration that such act is without lawful authority adversely affecting his interest. So to say that a person can only be termed as an aggrieved person if his vested interests are flouted is an incorrect import and meaning or the word `aggrieved' in context of Writ Jurisdiction. In the instant case, the open space under the plots is undoubtedly meant for the benefit of the benefit of the people of the locality around the site and the respondent being one of them and adversely affected by the allotment, are aggrieved arties for all intents. In a case entitled Messrs S. M. Ilyas do Sons Ltd. v. Monopoly Control Authority (P L D 1976 Lah. 834), it was observed :--. "So they have a substantial interest in the matter. And it is by now a fairly settled law that such a person is an aggrieved party within the meaning of Article 199 of the Constitution and as such has locus standi to file and appreciate a petition under the said article." This view is based on a decision, given in a earlier ease reported as P L D 1969 S C

223. It was observed in this case :- "The right considered sufficient for maintaining a proceeding " writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in- a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. "A corporation entrusted with the task of formulating town improvement schemes had appropriated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite of the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped . for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition." We find ourselves in total agreement with the enunciation of law in the afore-mentioned cases and hold that the respondents herein who are interested in the preservation of the impugned plots in question as open spaces are aggrieved parties. The next question which falls for determination is that whether the allotment of the open space has violated any law or rules. It stands proved that all the allottees of the plots were made to pay for the open spaces and such spaces were not available for allotment. But despite this strangely the Act and the rules made thereunder do not contain any such restriction. In these circumstances whether any rule or law has been infringed is a question of vital importance but we leave it open to be decided in some other appropriate case as the judgment of the High Court shall stand on another ground. Now we take up the matter whether a scheme for allotment wan prepared by the Committee and if not what is its effect. Under section 9 of the Act, it is imperative for the Committee to prepare a scheme for the allotment of lands in the new Mirpur Town Township and hamlets which is to be sold to the intending purchasers or to be leased out. The section reads :-

9. The Committee shall- (1) prepare schemes for the allotment of land in the new Mirpur Town, townships and hamlets which is to be sold to intending purchaser or to be leased out and shall take such measures as may be necessary for carrying out the purposes of this Act. The plain reading of the section manifests the intention of the lacy makers that a prior scheme is a must for a valid allotment under the Act. In our estimation no valid scheme as stipulated under the Act was prepare' by the Committee prior to the allotment of the plots in question The Chairman. before the allotment, only directed the Oveseer to make a proposal who in turn marked the plots as 48-A and 48-B. This is no scheme, The Scheme visualized to our view must be comprehensive to show developmental sewerage and other incidental charges. In this view of the matter proposal or report of the Overseer can in no way be termed to be a scheme contemplated under the act and as such the allotment fix, want of proper scheme fails. It was also urged by the learned counsel for the appellant that allot ment made in the names of the appellants could only be cancelled by filing an appeal under section 7 of the Act and if this remedy is not availed of, the Writ petition not.-competent. We are not inclined to agree with the learned Counsel No machinery was created for filing an appeal up to January, 1970, and the law is now settled that when a' machinery is trot provided to redress a wrong by way of an appeal, it cannot be made a valid ground to oust the writ jurisdiction of the High Court, Now remains the question of the competency of the Government or the Chairman to cancel or restore the allotment. In view of the finding that the basic allotment made on 23rd December, 1967, by the Committee in favour of the Appellants is void, these questions remain only of academic interest and need not be decided in this case. In view of the above the appeal fails with costs. S .Q. Appeal dismissed.