1999MLD570 (PLP)

5. Ch. Muhammad Azam Khan, the learned Counsel representing Maroof Hussain, petitioner in Writ Petition No.17 of 1996 and respondent in Writ Petition No.3 of 1995, raised that following points in support of the writ petition as well as in defence in the counter-petitions (i) That Plot No.335-A measuring 90' X 100' situate in Sub-sector B-5 Mirpur was originally allotted in the name of Raja Muhammad Afzal Khan, father of petitioner, Raja Saeed Afzal Khan, which was cancelled from his name through a general order issued in December 1973 and through a notification issued on 16-12-1980. The said Raja Muhammad Afzal Khan did not file his application for allotment under the Special Regulations framed for the purpose, therefore, there remains no dispute with regard to the plot and the same under law, stood transferred to Municipal Corporation, Mirpur, at the time the notification for transfer of developed sector, was issued; (ii) That the said Raja Muhammad Afzal Khan was not entitled of the allotment of plot under the Special Regulations as he secured allotment of another plot and in presence of that allotment, was no entitled, in any case, to the allotment of the plot in dispute, as such, the question of his right to allotment did not arise at all; (iii) That no dispute with regard to the plot in question was pending with the Mirpur Development Authority, or in any Court of law, as such, the claim of petitioner, Saeed Afzal Khan, for the same having been pending before the M.D.A., was baseless and, therefore, the allotment by M.D.A. for the plot in dispute, was void ab initio, particularly when the powers of allotment, in view of the aforesaid notification, resided with the Municipal Corporation, Mirpur; and (iv) That the allotment in the name of Mst. Shamim Akhtar, allottee, now represented by Maroof Hussain, petitioner through a transfer effected in his name, was made in accordance with law, as such, could not be challenged through a writ petition.

6. Ch. Liaqat Ali Khan, the learned Counsel for Ashiq Hussain, petitioner also adopted the arguments addressed by Ch. Muhammad Azam Khan and further added the following:- (i) That under the Special Regulations framed for the plots cancelled through the notification issued on 16-12-1980, the allotment could be made only in the name of previous allottees on the application moved by them at the relevant time. The previous allottee, Raja Muhammad Afzal Khan never moved under the aforesaid Regulations and was also not entitled to its allotment, therefore, the plot went in pool and the same was transferred to Municipal Corporation in 1985, through another notification issued in this regard, as such, the powers of allotment with regard to the plot in dispute rested with the Municipal Corporation which allotted the same in the name of Ashiq Hussain, petitioner; (ii) That the Mirpur Development Authority illegally entered the plot in dispute in the list of disputed plots, pending before the M.D.A, as such, exercised illegal jurisdiction in making the allotment in favour of Raja Saeed Afzal Khan, but the allotment in favour of Ashiq Hussain, petitioner in Writ Petition No.50 of 1995, was made in accordance with law after completing necessary procedure, therefore, cannot be assailed through writ petition. Ch. Lai Hussain, the learned Counsel representing the Mirpur Development Authority, supported Mr. Muhammad Riaz Tubassam, in his arguments addressed at the bar.

8. I have heard the learned Counsel for the parties and also gone through the record. The facts are not disputed between the parties except that the plot was disputed one, as such, pending with the Mirpur Development Authority at the time the developed sectors were transferred to the Municipal Corporation. It was claimed by Raja Saeed Afzal Khan, petitioner that the matter was pending before the M.D.A. as the final disposal was awaited, as such, the same was not transferred to the Municipal Corporation, while Ashiq Hussain and Moroof Hussain's claim is that there was no dispute left for the plot in dispute before the M.D.A. authorities, as such the same stood transferred to the Municipal Corporation, Mirpur which, in due course of process, bifurcated the same and allotted under rules to them.

9. Plot No. 335-A (in dispute), measuring 100' X 90' was originally allotted in the name of Raja Muhammad Afzal Khan, on 5-4-1973 and the same was cancelled through a Notification No. Mangla-3726/73, dated 4-12-1973. On 16-12-1980, the Government of Azad Jammu and Kashmir issued Notification No.Coord-77/MDA-14/1762-1774 (Annexure P-6 in file No.17/96), whereby the allotments cancelled through this notification and through earlier notification, were to be made in favour of deserving previous allottees by the Allotment Committee constituted under the Mirpur Development Authority Act, 1974, in relaxation of the general rules and regulations of allotment. Hence the special regulations of 1981, known as Mirpur Development Authority Special Regulations, 1981 were framed. The M.D.A. received applications from the previous allottees under the aforesaid regulations and-disposed of the plots mentioned in the Regulations of 16-12-1980. The applicants who did not file their applications or found disentitled by the Allotment Committee functioning under the special regulations, those plots were held to be included in the general pool. In the present case, Raja Muhammad Afzal Khan, did not file any application under the special regulations framed for the purpose, but moved an application on 16-7-1987 (Annexure P-9 in file No.17/96), to make the allotment of plot in dispute in the name of his son, Raja Saeed Afzal Khan. It was also mentioned in the application that an application was also moved on his behalf in 1975, for the restoration of the allotment. The said Raja Muhammad Afzal Khan, subsequently filed an application for the allotment of another plot and was allotted Plot No.70 measuring one Kanal situate in Sub-sector F-3, Mirpur, and subsequently Plot No.223-A of the same size was allotted in lieu of aforesaid plot, on 19-4-1981. This leads to the conclusion that Raja Muhammad I Afzal Khan never applied for the allotment of plot in dispute under the special regulations as required by section 4 of the special regulations and was not entitled to its allotment under the aforesaid regulations as well, for having secured the allotment of another plot in his name, mentioned above, under subsection (3) of section 5 of the same regulations which is reproduced as under:- "5(iii) The applicant himself or any of the member of his family must not have previously obtained any allotment of any residential plot either in the Mirpur Town or in any Hamlet or have been allotted/transferred C or D Type Bungalow or lower type quarter belonging to the Government or WAPDA."

10. The next question arises, whether the plot in question remained pending with the Mirpur Development Authority or the same was transferred to Municipal Corporation at the time of transfer of developed sector in 1985. It may be mentioned that the Government of Azad Jammu and Kashmir in exercise of powers conferred under subsection (3) of section 3 of the Mirpur Development Authority Ordinance, issued Notification No.Coord/SC/265 277/85 on 14-2-1985 which took effect from April 10, 1984, whereby some of the developed sectors including the one where the plot in dispute was situate, were transferred to the Municipal Corporation, Mirpur from M.D.A. The disputed plot pending in any Court of law or before any authority of M.D.A., remained with the M.D.A. under subsection (b) of section 1, which reads as follows:- "1 (b)The disputed plots/areas pending finalization in any Court of law or any allotting, revising or appellate authority of the M.D.A. as per the list supplied by M.D.A. shall be transferred to Municipal Committee after finalization of the dispute."

11. A perusal of the record produced by the respective parties shows that plot in question, in view of the aforesaid provision of law, remained pending with the M.D.A. Reference may be made to the document, Annexure D/1 (file No.17/96) wherein a report was made by Municipal Committee for inclusion of plot in dispute in the list of disputed plots, furnished by the M.D.A. The list of disputed plots prepared by M.D.A., Annexure 'P-6' (File No.50/95) indicates the above position, appearing at Serial. No.133. Therefore, it implies that plot in dispute remained with the M.D.A. for some or the other reason, as a disputed plot and the same was not transferred to Municipal Committee/Corporation, at the time when the above notification of 1985 was issued which follows that the allotment made by the Municipal Committee/Corporation and all its actions taken in this regard were not justified in law as the powers to make the allotment of the plot in dispute were not with the Municipal Committee/Corporation. The power of allotment could only be exercised in respect of the disputed plots when those were transferred by the M.D.A. after finalization of their disputes to the Municipal Committee/Corporation. The learned Counsel representing Maroof Hussain and Ashiq Hussain, petitioners, challenged the list of disputed plots prepared by the E M.D.A. and mentioning therein the plot in dispute. The argument has a little force in view of the factual postion prevailing, as the fact remains that the plot in dispute remained a disputed plot entered in the list prepared by the M.D.A. Therefore, the power or the authority of Municipal Committee/Corporation in respect of plot in dispute, was not available.

12. So far as the allotment of Raja Saeed Afzal Khan, petitioner is concerned, he never asserted his tight of allotment as an independent applicant. Throughout his case retrained that the allotment of plot in dispute had been made in his name under the special regulations, in lieu of allotment earlier existing in the name of his father Raja Muhammad Afzal Khan who relinquished his right in his favour. It requires no discussion that under the special regulations, it was only the previous allottee who could file an application and allotment could be made in his favour if found entitled. Raja Saeed Afzal Khan C was neither a previous allottee, nor could apply under the special regulations, as such, the allotment in his name by the Allotment Committee, functioning under the special regulations, is also illegal and without jurisdiction. It may be clarified that under para. 2 of the notification dated 16-12-1980, the allotment could only be made subject to entitlement, to the person from whose name the same was cancelled. The aforesaid requirement was reiterated in section 3 of the special regulations. The relevant para. 2 of the Notification and section 3(i) of the special regulations, are reproduced as follows:- "Notification dated 16-12-1980

2. The present Allotment Committee may allot the plots to the persons in whose name the allotments have been cancelled vide para. 1 above, and also allotments cancelled through Government Notification issued under No.Mangla-3726/73, dated 4-12-1973, on the terms and conditions for the time being in force subject to the entitlement etc., in relaxation of the relevant Rules and Regulations, on the subject ..... M.D.A. (Special) Regulations, 1981.

3. Notice of Application. (i) Notice through Press and Notice on the office Boards shall be issued by the Authority inviting applications for fresh allotment from persons specified in the aforesaid Notification, giving details of prices, terms and conditions for eligibility and shall also contain sufficient details of proof which shall be required to establish eligibility .....

13. It may also be stated, that the allotment in favour of Raja Afzal, petitioner is shown to have been made on April 24, 1989. The Government of Azad Jammu and Kashmir, through a Notification No.Coord/1651-1752/ 90, dated 25-11-1990, cancelled all the allotments trade during the period from 14-12-1988 to 8-7-1990. However, in a subsequent notification issued on 3-10-1992, the above notification was substituted by another Notification No.1380-1480/92, whereby a Revising Authority was constituted to scrutinize the allotments mentioned above. The allotment in the name of Raja Saeed Afzal Khan, petitioner was also included in those allotments which even otherwise, was not in existence, in view of the notification mentioned above as no order as to the restoration of the allotment by the Revising Authority constituted under section 48(6) (i) of the M.D.A. (Amendment) Act, 1987, by the Azad Jammu and Kashmir Government, was placed on record.

14. In view of the above discussion, the allotment of Plot No.335-A measuring 100' X 90', made in favour of Raja Saeed Afzal Khan, by the M.D.A. on 24-4-1989, and the order of allotment of Plot No.335/B measuring 50' X 90' made by the Municipal Committee on 20-2-1990, in the name of Mst. Shamim Akhtar and subsequently transferred in the name of Fazal Dad son of Sakhi Muhammad and further transferred in the name of Maroof Hussain, petitioner (in writ petition No.17/96) and allotment of Plot No.335-A situate in Sub-sector B-5, Mirpur, made on 20-2-1990 in the name of Ashiq Hussain, petitioner, are declared illegal, without jurisdiction and of no legal effect, as such are cancelled. The relevant Plot No.335-A, measuring 100' X 90' shall go to pool of Municipal Committee/Corporation which shall proceed in accordance with the rules and regulations in disposal of the plots Consequently, all the writ petitions stand disposed of as indicated above. H.B.T./154/AJ&K/ Order accordingly.