1. ' By this writ petition the allotment of a piece of land which, according to the petitioners, is an open space lying towards South of Plots Nos. 42 and 48 situated in Sub-Sector C-2, Mirpur town is in question. Plots Nos. 42 and 48 stand allotted to the petitioners over which they have constructed their houses and a strip in dispute is just adjacent to them in the rear of the houses constructed by the petitioners. This strip was marked into plots Nos. 48-A and 48-B by the Overseer and its allotment was made by the Allotment Committee consisting of the Chairman and two members, namely, Qazi Muhammad Bashir S. P. And Ch. Farman Ali, Vice-Chairman of the Municipality who is father of respondent No, 2 and maternal uncle of respondent No,
1. The petitioners felt aggrieved themselves by the impugned allotment in favour of the son and the sister's son of one of allotting member as open space adjoining to their houses was left for their enjoyment and so they proceeded against the allottees wherever they could have a way to go in order to raise cry and get the order of allotment cancelled. On the protest made by the petitioners, the Allotment Committee, after considering the case of the petitioners, cancelled the allotment of the plots treating them as an open-space and even the Government had to take steps to cancel the allotment in question because it was against the scheme of the Government to make allotments of the open-spaces which were left vacant for the stroll, walks and recreation purposes of the people residing in the town.
2. ' On the perusal of the record it shows that Ch, Farman Ali, an allotting member had been himself fighting for the allotment in favour of his son as well as his sister's son. And then it was under the direction of the President or the Government that the Chairman of the Allotment Committee restored the allotment of the plots in question which, according to him, was to be restored because there was no speculated interference found in the privacy of the allottees nearby if the allottees herein were allowed to construct their houses over the land in dispute which, according to him, was not an open-space. It was thus that the petitioners had to move this Court for invoking its writ jurisdiction in the matter.
3. ' The allegations of the petitioners were controverted by the allottees respondents through Ch. Farman Ali, the very member of the Allotment Committee who took part in the allotment in dispute.
4. ' The learned counsel for the parties] were heard who have very efficiently placed their points of view before the Court. The learned counsel for the respondents has raised objections to the maintainability of the writ petition. According to him, the petitioners are not the persons aggrieved because they have had no right in the plots in dispute. They may not be having any right of ownership in them, but it does not mean that they have no interest in the land in dispute. Their claim is that the strip in dispute is an open space left vacant for use of the residents of the locality.
5. This version needs determination and unless it is held otherwise by the Court, the writ petition cannot be thrown out on the mere objection of the respondents-allottees that the petitioners have no vested interest in the plots in dispute. If their version finds favour with the Court, they are the very persons interested in the plots in dispute and as such aggrieved thereof. They had been pleading their case before different authorities in order to protect the existing position of plots on spot as an open-space not marked for allotment to any one and lastly were aggrieved by the orders of Mr. President and the Chairman of the Allotment Committee. Therefore, the objection taken by the learned counsel for the respondents is overruled.
6. In this case evidence of the parties was also recorded by my learned colleagues so as to solve the point with regard to the nature and character of the land in dispute. Whether it is a piece of land left by the Town-planner as an open-space or it is available for housing ? Copies of the maps of the town were produced by both the sides. The copies which were produced by the petitioners show that the land in dispute is an open-space for the use of the residents of the Mohallah, whereas the copies produced by the respondents show that the words 'open-space' do not appear in the map in respect of the land in dispute. The petitioners produced Ch. Mahboob Ellahi, Executive Engineer and Jamal Din. The former fully supported the version of the petitioners that the land in dispute was left as an open-space and was not for allotment to the individuals for the housing purposes. Moreover, it was also disclosed by Mr. Mahboob Ellahi and Jamal Din with the support of the record that the price of open-space under the head `Development Charges' was realized collectively from the people in common along with the price of the plots allotted to them individually and so according to them, the open-spaces being common property could not be allotted to any individual. On the other hand, it was deposed to by the respondents through their witnesses including Ch. Farman Ali himself that the land in dispute is not an open-space though Ch. Farman Ali in the very beginning had to admit that the land in dispute is an open-space but according to him, it was available for allotment as it was the Government property which had a right to do so through its agency. The Government cancelled the allotments of open-spaces including the plots in question because they were treated as such. But afterwards, on interference made by the President, the Chairman of the Allotment Committee, Sardar Rehmatullah had to act in a manner which is tantamount to the cancellation of the order of the Government thereby restoring the allotment in question. The President alone was not the Government who as such could have asked the Chairman to modify the order of the Government. The President made a direction that if there is no legal hitch in the restoration of the allotment of the plots, it may be done so, but the Chairman, without looking into the legal aspect of the case and without hearing the persons objecting to the allotment, passed an order of the cancellation of the orders of the Government as well as that of the Allotment Committee itself thereby restoring the allotment originally made in favour of the respondents. Under the rule in relation to the allotment of plots, the Chairman is not competent to make any order respecting the allotment unless empowered as such by the Committee but no such power was delegated to the Chairman to conduct the business of the Committee all alone.
7. ' Moreover, there is no provision ill the relevant law concerning the allotment of land situated in the Town of Mirpur by which the allotment once made could be cancelled by the Chairman or the Committee itself except when the default is in the payment of the price of the plot allotted. Thus, the impugned order passed by the Chairman on the direction of the President is without jurisdiction and as such stands cancelled. That being so, the order of the Government in cancelling the allotment of the open space may stand in tact unless annulled in due process of law. When Ch. Farman Ali, the attorney of his son and another respondent who are the allottees, himself admits that the piece of the land in dispute is an open-space, then there can be no quarrel with the deposition of Ch. Mahboob Ellahi and Jamal Din who have clearly made it known with the help of the plan of the town prepared by the Town-Planner and the other relevant record produced before the Court that the land in dispute is an open-space. To save the town from congestion and suffocation, liberal provision' in the shape of wide roads, footpaths and open-spaces has been made in the plan. This provision shows that according to the scheme of the town, the open-spaces cannot be made available for allotment to any individuals A which at the same time have a character of a common property of certain categories of people. That being so, the impugned allotment of the plots in question was illegally made.
8. ' Besides, a perusal of the papers concerning original allotment made in favour of respondents Nos.
9. I and 2 shows that it was on a report of an Overseer that the allotment of open-space was made to the respondents by the Chairman of the Allotment Committee and its members including the father of respondent No, 2 and maternal uncle of respondent No,
1. There were some other allotments made in the name of these allottees but they had already stood allotted to some-one else and so the Overseer made a report to this effect that the open-space in dispute should be allotted to them on which the Chairman of the Allotment Committee directed him to put in a proposal who, then simply marked the open space into plots which was already suggested by him to the Chairman of the Allotment Committee for allotment of the same to the respondents- allottees. It seems that it was done so on 9-12-1967 by the Overseer and the Chairman of the Allotment Committee. It was then on 28-12-1967 that the allotment of the land in dispute was made in favour of the respondents. It shows that there was no meeting of the Committee to prepare a scheme for allotment of the land in dispute. Under section 9 of the New Mirpur Town (Allotment of Land) Act, 1964, the Committee is first to prepare a scheme for allotment of land in New Mirpur Town which is to be sold or allotted to the intending purchasers but no such scheme seems to have been prepared by the Allotment Committee. The Allotment Committee consists of a Chairman and some other members not exceeding four in number as may be appointed by the Government from time to time. Here the Chairman alone directed the Overseer to put up a proposal for the allotment of the plots to the allottees of the plots in dispute. The report of the Overseer is clear that it was a suggestion by the B Overseer of his own accord to the Chairman for the allotment of the plots in question and there was no scheme prepared by the Committee. This is a mandatory provision of law in derogation of which no allotment of the land can legally be made by the Allotment Committee. The act of the Committee here was just to place a cart before the horse. That being so, the allotment of the plots in dispute is bad in law and without lawful authority.
10. In the result, accepting this writ petition it is hereby declared that the impugned orders in respect of the allotment of the land in dispute are without a lawful authority and of no legal effect. Thus this first wait petition Filed to this Court stands disposed of accordingly.