' MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal with the leave of the Court arises out of judgment of the High Court dated 27th November, 2008, whereby Writ Petition No,58 of 2004 has been dismissed in limine.
2. The appellant filed a writ petition in the High Court on 18th May, 2004 alleging, (herein that Plot No,5, situate in Sector D-4, West Block, Mirpur was allotted by the Allotment Committee of M.D.A. In the year 1988 to Muhammad Nabi son of Khushi Muhammad. After depositing the price of plot, he obtained allotment chit and possession of the plot. The allottee sold the plot to one Abid Hussain son of Muhammad Rafique Bhatti, which was transferred to his name, who constructed a boundary wall and a room in the plot and donated-the said plot to Kashmir Free Blood Bank and Welfare Centre, appellant herein. The plot was transferred in the name of appellant on 11th January, 2003.
The appellant moved an application for approval of building plan, which was not approved. It came to the knowledge of appellant that respondent No,5 has moved an application to Estate Officer to the effect that Plot No,6-A was purchased by her through lqrarnama and claimed Plot No,6-A at the same place, where Plot No,5 was situated. The M.D.A. Authorities demolished the boundary wall and room constructed by the appellant in the plot. " The appellant moved an application for obtaining copies of allotment order of Plot No,6-A and the amended sector plan, but the same were not issued. The appellant challenged the creation of Plot No,6-A at the place where Plot No,5 was situated in sector plan, being illegal, mala fide and without jurisdiction. The appellant attached copies of allotment order issued in favour of Muhammad Nabi, transfer order in favour of Abid Hussain, transfer order in favour of appellant, the original sector plan, copy of building plan and the application for approving the building plan. A learned single Judge in the High Court sought parawise comments and after perusing the same dismissed the writ petition in limine on the ground that the appellant is estopped from challenging the creation of Plot No,6-A.
3. Mirza Qamar-uz-Zaman, the learned counsel for the appellant, argued that the judgment of the High Court is not maintainable. Plot No,5 was part of original master plan, which was allotted by the Allotment Committee of M.D.A. Mirpur, in the year 1988 to Muhammad Nabi, who deposited the price of plot and obtained its possession. Later .On the plot was transferred in the name of Abid Hussain, who after obtaining permission for construction of boundary wall constructed the same and also constructed a room. He transferred the plot in the name of appellant. The officials of M.D.A. Mirpur have changed the sector plan without the sanction of M.D.A. Board and the Government. They altered the size of plot of appellant and also changed its location the Town Planner, Assistant Town Planner and the Draftsman of M.D.A. Have no authority to change the size and location of the plots. The learned counsel further contended that the leaned Judge in the High Court fell in error while declaring that the appellant is estopped from challenging the creation of Plot No,6-A; Plot No,5 was part of original master plan and Plot No,6-A has been created at the same place, where Plot No,5 was situated. The size of plot of appellant and its location have also been changed illegally. In the original sector plan, Plot No,5 was situated between two roads, but now it has been transferred to a place which is on the other side of a Nallah. After allotment of plot and taking its possession, a right has been vested in the appellant which cannot be taken away arbitrarily and without hearing.
4. While controverting the arguments Ch. Muhammad Anwar, the learned counsel for respondents Nos.5 and 7, argued that the judgment of the High Court is perfectly legal. The appellant moved an application in the M.D.A. That the size of the plot has been changed and building plan is to be approved in the light of changed size, therefore, the appellant is estopped from challenging the creation of Plot No,6-A and change in the location of Plot No,5. He further argued that Plot No,6-A was duly created by the M.D.A. Which was purchased by respondent No,5, who is a bona fide purchaser and is entitled for retaining the possession of the same.
5. Mr. Muhammad Reaz Alam, the learned counsel for respondents Nos.1 to 3, adopted the.
Arguments advanced by the learned counsel for respondents Nos.5 and 7. He defended the judgment of the High Court.
6. We have heard the learned counsel for the parties and perused the record. The learned Judge in the High Court has dismissed the writ petition in limine by application of principle of estoppel on the ground that the appellant in his application had admitted the factual position of marking of Plot No,6-A, thus the writ petition was not competent. We have minutely perused impugned judgment and the cited application of the appellant. In the application the appellant has not admitted the creation of new plot. He has only mentioned the alteration in the size of plot. Thus without discussion of other merits and facts of the case, we are of the opinion that the learned Judge of the High Court has not correctly applied the principle of estoppel in this case. Hence the impugned judgment is not maintainable.
7. We have considered the points raised in the memo. Of writ petition filed by the appellant. In para 7 of the writ petition, in the shape of grounds, it has been specifically averred that the marking of Plot No,6-A is illegal and fictitious. Para 7 of the writ petition is as under:--- "7. That the whole action of the non-petitioners is illegal and not maintainable, inter alia, on the following grounds:---
(i) that the whole action is against law and facts of the case;
(ii) that Plot No,6-A was illegally and fictitiously marked in place of plot of the petitioner;
(iii) that the action under consideration is mala fide one;
(iv) that the petitioner shall suffer irreparable loss;
(v) that the action of the non-petitioners is without jurisdiction;
(vi) that the marking of the subsequent plot on the plot of the petitioner is against law and rules;
(vii) that even otherwise, the action of the non-petitioners is not warranted by law."
' In our view the points raised in the writ petition are of vital legal importance which require detail deliberation which is possible after IC regular hearing of the parties.
8. During the course of arguments, it transpired from the record that there is marked variation between the original master plan and part plan. Not only the size and location of plots has been changed, but the road passing between plots Nos.2, 3 and 4, 5 has been eliminated the part plan.
The size and locations of plots have been altered and plots have also been marked at the place which was reserved for park, therefore, we summoned the Town Planner M.D.A. Sarfraz Alam, Town Planner, M.D.A., appeared before the Court along with the original Master plan and part plan. While producing the copy of part plan which is prepared vide Drawing No,TP-0079-98, he apprised the Court that it is signed by Mirza Muhammad Kaleem, now Deputy Director M.D.A., who Was Town Planner of the time, therefore; we summoned Mirza Muhammad Kaleem and fixed the case for the next date. On the next date Mirza Muhammad Kaleem appeared in the Court and stated that Drawing No,TP-0079-98 has not been prepared by him as he was not posted in M.D.A. At the relevant time. Sarfraz Alam, Town Planner M.D.A., who was present in the Court along with the record, after perusing the drawing, apprised the Court that the drawing is prepared by Khurshid-ul- Hassan Shah, Head Draftsman, Ch. Muhammad Akram, Assistant Town Planner and Sarfraz Alam himself, in his capacity as Assistant Town Planner and the drawing has been approved by Ch. Muhammad Mushtaq, Town Planner of the time. A notice was issued to all the four persons to appear in the Court and explain that under what authority of law they had changed the master plan. Sarfraz Alam was also directed to produce the altered record of master plan and sector plan and also produce the approval of M.D.A. Board and Government, if any. All the four functionaries of M.D.A. Appeared in the Court and filed written explanations/ comments, whereby they stated that there was no approval by the authority and the Government under which, they changed Drawing No,TP-0025-88 and prepared Drawing No,TP-0079-98. Sarfraz Alam also produced certified copies of original sector plan of Sector D-4, West Block, amended plan and another plan which is under preparation now-a-days. It appears appropriate to reproduce the explanation furnished by all the four functionaries of M.D.A. Mirpur, which is as under:--- {{URDU TEXT}}
9. A perusal of explanations/comments furnished by all the four Functionaries of M.D.A. Reveals that no order of the authority and the Government was in existence for changing Drawing No,TP-0025- 88 and it was changed against the law. It may be stated that Mirpur Development Authority, Mirpur is creation of AJ&K Mirpur Development Authority Ordinance, 1974. Section 11 of the said Ordinance deals with the master plan and master programme. It will be useful to reproduce section 11 of the Ordinance which is as under:--- "11. Master plan and Master Programs.--- The Authority may or if so directed by the Government shall prepare master plan and phased master programme for the development of any part or whole of the specified areas of the District Mirpur and all such plans and programmes prepared from time to time shall be submitted to the Government for approval.
' Provided that the Authority may issue interim development orders for areas for which master plan is being contemplated or is under preparation and restrict or prohibit by general or special order any change in the use of land and alteration in buildings, structures and installations; ' Provided further that the Authority may make necessary additions and alterations as per actual requirements in the approved Master Plan."
' A perusal of above section leaves no doubt that the authority on the direction of Government may prepare master plan and phased master programme for the development of any part or whole of the specific areas of District Mirpur and all the plans so prepared have to be submitted to the Government for approval. It further provides that the authority may make necessary additions and alterations in the master plan after approval of the Government. The proposition came under consideration of this Court in a number of cases. In a case titled Jamil Akhtar v. M.D.A. Mirpur through its Chairman and 4 others 1996 CLC 1464 the creation of Plot No,25-A/1 was challenged on the ground that the sector plan has not been approved by the M.D.A. Board. This Court observed as under:--- "One of the points raised before the Court was that new plot was created without lawful authority because changes in Master Plan could only be sanctioned by the Mirpur Development Authority.
This legal position has been accepted in the judgment under appeal making the following observation: ' So far as the other point raised by the learned counsel for the petitioner with regard to the marking of a new plot by the respondents is concerned, it may be clarified that the Mirpur Development Authority Board known as Authority is competent to mark any plot on its land provided the planning requires so under the M.D.A. Act.'
' However, the learned Judge repelled this objection on the ground that the allegation that plot had been created without the sanction of Mirpur Development Authority was not substantiated by any proof.
' Certified copy of the amended plan is on the file. It does not show the authority under which it was approved. However, the document placed as Annexure "D/2" throws light on how the plot was created. There is undated note by an Overseer which translated in English reads as follows:--- "In pursuance of the verbal directions by the Town Planner Plot No,25-A/1, measuring 90'x40' situated in Sector D-3 West Part-I, has been suggested as an alternative plot. Plot has been marked at the dead end and is a vacant side. The proposed plot does not affect the size of other plots and also does not affect any installation. Submitted for further orders."
' This note is followed by the following note by the Town Planner which also does not carry any date:--- ' The report is in accordance with the situation on the ground. Further proceedings can be taken.
Report is submitted for proper action.'
' It is not known as to what happened after that.
' It was stated in ground No,(ii) in para 9 of the writ petition that only Mirpur Development Authority was competent to change or alter the approved plan but the authority had not approved the creation of the Plot No,25-A/1. This assertion was backed by an affidavit sworn by appellant Jamil Akhtar. In reply to it, the averment in the joint written statement filed by respondents was that sub- para (ii) was not correct. This is an evasive denial. Apart from that no affidavit was filed by any functionary of the Mirpur Development Authority in support of the assertion. Only respondent Sajjad Hussain filed affidavit. He is the person to whom the plot in dispute was subsequently transferred.
Therefore his affidavit on this point is of no legal value. The contents of Annexure D/2 mentioned above clearly show that plot was created by the Overseer on the verbal instruction 'of the Town Planner. Mirpur Development Authority did not file any document to prove that changes have been sanctioned by the Board of Mirpur Development Authority. Therefore, it has to be accepted that Plot No,25-A/1 was not created by the approval of the Board of Mirpur Development Authority which, according to the judgment under appeal, is the authority which could do so."
In another case titled Riaz Ahmed v. M.D.A. And 4 others 2000 YLR 2050 it was observed as under:-- - "8. It was specifically pleaded by the appellant in his writ petition that the changes mentioned above had not been approved by the Mirpur Development Authority. It was also submitted that a change in the sector plan could only be made by the Mirpur Development Authority. It was further stated that an Overseer, Estate Officer or Chairman of Mirpur Development Authority are not empowered to change the sector plan. Another point was that once a plot has been allotted at a particular place no new plot can be created and allotted on the same location. The respondents have been unable to meet these conditions. The learned counsel for the appellant, Mr. Muhammad Azam Khan, stated that the part plan available at page 51 of the High Court file shows that nobody has approved the said part plan. It shows as to who were the persons who traced it, planned it and checked it but the column meant for approval is blank. The learned counsel for Mirpur Development Authority and the learned counsel for the private respondent were unable to show that the Mirpur Development Authority had approved the part plan and the changes brought about in the sector plan. The conclusion is that the impugned changes lack necessary approval.
9. It follows that the High Court fell in error in dismissing the writ petition. The appellant has been able to prove from the High Court file that' the plot allotted to him has been shifted without lawful authority. Therefore the shifting of the plot belonging to the appellant is quashed. The appellant shall be entitled to retain the same land which already stood marked as Plot No,327-B. All contrary actions are declared illegal."
' In another case titled Residents of Hamidpur Colony Chakswari v. Mst. Fazeelat Begum and 5 others 2000 M LD 1305 it was observed as under:--- "5. Now we advert to the question whether Mirpur Development Authority had been guilty of maladministration or not. The High Court has not given any reason in support-of this finding. In his order the Mohtasib stated that Mirpur Development Authority had committed maladministration by violating the Master Plan. It is provided in section 11 of the Mirpur Development Ordinance, 1974 as follows:--- XXX XXX XXX XXX XXX XXX XXX XXX ' It needs no laboured argument that the Authority is bound to act in accordance with the Master Plan. The only power available to Authority is given in second proviso, i,e, to make alterations as per actual requirement. There is no provision in the Ordinance that the Master Plan can be amended or varied. However the general principle of law, as enunciated in section 21 of the General Clauses Act, is that where a power to pass an order is conferred then that power includes the power to add, to amend, vary or rescind the order, but this power is exercisable only in the like manner and subject to the like sanction and conditions (if any). It follows that the Mirpur Development Authority can only modify the Master Plan by getting approval of the Government. The power to amend it is not vested in the Authority. It follows from the above that Authority is bound to abide by the Master Plan and it cannot violate it."
10. From the survey of above case-law it becomes crystal clear that under section 11 of the AJ&K Mirpur Development Authority Ordinance, 1974, the Authority can make alteration as per actual requirement, but there is no provision in the Ordinance that the master plan can be amended or varied. The Authority can only modify the master plan by getting approval of the Government. A perusal of the original drawing of sector plan, original plan of sector D-4, West Block, Drawing No,TP-0025-88 and Drawing No,TP-0079-98 leaves no doubt that sector plan has been materially changed and even the place reserved for park has been converted into plots, which is clearly misuse of authority, abuse of power, maladministration, misconduct and illegal act on the part of above mentioned functionaries. This Court in a case titled Walayat Begum v. Revising Authority MDA and 3 others 1999 M LD 1549 has held that the places reserved for public purpose are not available for allotment. The relevant portion of the report is as under:- "... Such places which are used by public at large such as water, tanks, gardens, public parks; graveyards and places of worship etc. Are not open to any allotment. Obviously making the allotments out of this area was even otherwise beyond the jurisdiction of the Chairman M.D.A. Or the Allotment Committee. Therefore the High Court and the Revising Authority in our view committed no illegality by setting aside the impugned allotments."
11. Thus the change in Drawing No,P-0025-88 prima facie appears to be misuse of authority abuse of power, maladministration, misconduct and illegal act on the part of above-mentioned functionaries of M.D.A., who, in their explanations/comments have admitted that they have changed the approved plan without sanction of the authority and the Government. The action of the functionaries of M.D.A. Apart from attracting initiation of departmental proceedings also attracts the penal provisions of law including the provisions of Ehtesab Bureau Act, 2001.
12. The result of above discussion is that we accept the appeal with no order as to costs, admit the writ petition for regular hearing on the points agitated in para 7 of the writ petition referred to hereinabove. The case is remanded to the High Court for decision after notice to the parties. Office is directed to send a copy of original sector plan, Drawing No,TP-0025-88, amended sector plan vide Drawing No,TP0079/98, comments furnished by four functionaries of M.D.A. To the High Court along with the record of the High Court.
13. Since we have reached the conclusion that functionaries of M.D.A. Have changed the sector plan without approval of M.D.A. Board and the Government, therefore, a copy of this judgment be sent to the Government through Chief Secretary for necessary action.