' MUHAMMAD AZAM KHAN, C.J.---The above titled appeal by leave of the Court arises out of an order passed by the High Court on 18th May, 2013, whereby a stay order initially issued was cancelled.
2. The appellant filed a writ petition in the High Court alleging therein that he is the owner of Plots No, 77 and 188 situate in Sector F/3, Part-IV, Mirpur. Both the plots are corner plots. The officials of the Mirpur Development Authority changed the sector plan and corner position of the plots was changed. He challenged the revised part plan whereby a road on the western side of his plots has been eliminated and it has been shifted towards the eastern side in between plots No,186 and 76 on one side and No, 186-A and 186-B on the other side. Initially, the High Court issued a stay order but after seeking objections and hearing the parties, the stay order was vacated.
3. Mr. Javaid Najum-ul-Saqib, Advocate, the counsel for the appellant argued that the order passed by the High Court is against law, record, the provisions of the Mirpur Development Authority Ordinance, 1974 and the regulations made thereunder. While relying upon annexure "PJ", the learned counsel argued that on the northern and southern sides of Plots Nos.188 and 77 are two main roads while on the western side there is a 30 ft. Road as such the plots of the appellant are corner plots. The Authority has no jurisdiction to change the position of the corner plots. After allotment of the corner plbts a right has been vested in the appellant which cannot be taken away arbitrarily while changing the sector plan. The learned Judge in the High Court failed to consider annexure "PJ" and newly prepared sector plan where roads on the western side of Plots No, 188 and 77 has been eliminated and shifted towards the eastern side in between Plots Nos. 186 and 186-A.
4. Ch. Muhammad Mumtaz, Advocate, the learned counsel for respondent No,7 refuted the arguments of the learned counsel for the appellant and submitted that the order passed by the High Court is perfectly legal. The respondent is owner of Plots Nos. 78, 79, 186 and 187, F/3, Part-IV, Mirpur. He submitted that the road shown in annexure 'Ti" has been eliminated and there is no road on the eastern side of the plots of the respondent. The appellant has no right to challenge the same.
5. Mr. Khalid Yousaf, Advocate, counsel for respondent No,10 and Mr. Ejaz Nazir, Advocate, counsel for respondent No,5, argued that they have been unnecessarily arrayed as party in the writ petition as well as in the appeal. They are not affected by the order passed by the High Court.
6. We have heard the learned counsel for the parties and also perused the record. The appellant has appended the certified copy of part plan of Sector, F/3, Part-IV pertaining to Plots Nos. 74 to 80 and 186 to 193 bearing drawing number TP.00-37/87, annexure, PJ and certified copy of revised plan of Sector, F-3, Part IV, annexure PH. A perusal of annexure, PJ, reveals that there is a 30 ft. Wide road on western side of Plots Nos. 77 and 188 whereas on the other side of the road is a plot of local mosque and Plot No,
189. In the revised part plan, annexure, PH 30 ft. Wide road has been eliminated. In the revised part plan after Plots Nos. 186 and 79, Plots Nos. 186-A and 186-B are shown to have been created, which were not part of, drawing No, TP. 00-37/87. It appears that by eliminating the road the position of Plots Nos. 188 and 77 has been changed from the corner to an ordinary plot. The elimination of road will also adversely affect the location of mosque. And P.Ot No,189. Plots Nos. 186-A and 186-B appear to have been created by bringing an amendment in the sector plan. Under the provisions of the Mirpur Development Authority Ordinance, 1974 the master plan/sector plan can only be changed by the Authority with prior approval of the Government. The proposition came under the consideration of this court in a case titled Jamil Akhtar v. MDA Mirpur through its Chairman and 4 others 1996 CLC 1464 wherein it was observed as under:-- "When the plot was allotted to the appellant as a corner plot a right became vested in him to enjoy the advantage that there will be no plot on one side of the plot. That advantage has been taken away. In this situation the appellant is an aggrieved person and has a right to invoke the constitutional jurisdiction of the High Court to challenge the alternation being carried out in the plan of the area. Facts were almost similar in well-known case of Fazal Din v. Lahore Improvement Trust Lahore (PLD. 1969 Lah. 223) Lahore Improvement Trust formulated a town improvement scheme and land was earmarked for the construction of houses and a public market. This induced the appellant, before the Supreme Court of Pakistan to purchase a piece of land opposite of, the market in the hope to open a shop there. Subsequently the scheme was altered and the said appellant was deprived of the facility he had hoped for. The Supreme Court of Pakistan held that deprivation of such a facility would confer a sufficiently valuable right upon the residents of the scheme area to enable them to maintain an application for enforcing the trust to discharge its obligation of executing the scheme as sanctioned by the Government."
' It was further observed in the referred report as under:-- "One of the points raised before the High 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 be 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 only lot on its and 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 un dated 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' x 40' situated in Sector D-3 West Part-1, 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 documents 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."
7. Powers of amending master plan/sector plan came under consideration of this Court in a case titled Kashmir Free Blood Bank and Welfare Centre (Registered) through Attorney v. Mirpur Development Authority through Chairman and 6 others 2012 CLC 928, it was observed in para 10 as under:- "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,TP0025-88 and drawing No, TP0079-98 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."
8. Order XXXIX, Rules 1 and 2 of C.P.C. Governs the interim injunctions. Three conditions are necessary for issuance of a stay order i.e,; (i) a good prima facie arguable case,(ii) irreparable loss which a party will suffer if stay order is not issued or due to issuance of stay order the other party, will suffer and; (iii) balance of convenience. If a good prima facie arguable case is made out by a party then the question of irreparable loss has to be considered by the Court. Irreparable loss means the loss which will be suffered by a party if stay order is issued or not issued. It was held in a case titled Kaneez Akhtar v. Azad Government and 10 others (2004 SCR 318):-- "The general principles governing the issuance of stay order in a civil suit, appeal or a writ petition are found in Order XXXIX, Rules 1 and 2, C.P.C. For proper perception we would like to quote those guiding principles as under:- ' 'The prima facie existence or a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the appellant.
' The irreparable damage or injury will accrue to the applicant if the injunction is not granted.
' That the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of applicant.' "
' For making out a good prima faice case, it is not necessary that a party shall show that in all circumstances its case will succeed. It is sufficient if a party shows that he has raised a fair question for determination by the Court. It was observed in a case titled Qaiser Sadiq and another v. Shahroom and 4 others (2013 SCR 61) as under:- "For issuance of stay order the first ingredient is that there must be a prima facie arguable case in favour of the party who wants the interim relief and if a party is successful in establishing good prima facie arguable case, then other two ingredients i.e, irreparable loss and balance of convenience are to be looked into. At the time of issuance of stay order the plaintiff has only to show that he has a good prima facie arguable case and he has raised a fair question as to existence of his right and till disposal of the case he is entitled for preservation of status quo. If the plaintiff establishes a prima facie arguable case, then the Court has to look into the balance of convenience and the balance of convenience means that if any injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to him shall be greater than that which shall be caused to the defendant if the injunction is granted and the suit is ultimately dismissed."
9. Prima facie, it appears that by amending the sector plan without jurisdiction, corner position of the plots of the appellant has been changed due to which the appellant has got a good prima facie arguable case and if the respondents are succeeded in raising the construction it will be the appellant who will suffer an irreparable loss. Balance of convenience also lies in his favour. Keeping in view the rules governing injunctions; i.e, (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss, we hereby order that respondents shall not raise construction in the plots till disposal of writ petition by the High Court and maintain the status quo.
10. Before parting, we may observe that from the perusal of annexure, PJ and PH, it appears that by altering the sector plan the functionaries of Mirpur Development Authority, Mirpur have created some new plots i.e, 186-A and 186-B and also changed the size of Plot No,80 apparently without any jurisdiction. It is the High Court who will consider the sector plan and shall provide an opportunity to the respondent whether respondent i.e, Development Authority, Mirpur has changed the master plan/sector plan with the approval of Government or not. It has come into our notice that in a number of cases the sector plans are changed arbitrarily without prior sanction of the Government and Authority in an illegal manner, which is violation of law and causes hardships to the citizens, allottees etc. It is, therefore, ordered that functionaries of Mirpur Development Authority, Mirpur shall refrain from altering master plan/sector plan in Mirpur City in an arbitrary manner without prior sanction of the Government and Authority. They shall also refrain from changing the size of the plots and no order for allotment and revising of the plots shall be passed by the Mirpur Development Authority against the clear legal provisions of Mirpur Development Authority Ordinance, 1974 and Regulations for Development and disposal of Estates, 1977. Copy of this order shall immediately be sent to the Director General Mirpur Development Authority, Mirpur and Chief Secretary of the State of Azad Jammu and Kashmir for compliance. The appeal is accepted in the terms indicated above with no order as to costs.