CH. MUHAMMAD IBRAHIM ZIA, J. --- The captioned appeal by leave of the Court is addressed against the order of the High Court dated 16.8.2012, whereby writ petition filed by the appellant has been dismissed.
2. Precise summary of facts necessary for disposal of this appeal is that the dispute regarding piece of land measuring 25'x50, situated at Sector F/1, Mirpur, is the bone of contention among the parties. The appellant claims that this piece of land was allotted to one Mst. Kaki Bibi, who was (widow) of his real maternal uncle. Subsequently, this piece of land was transferred by Kaki Bibi to her daughter Gulzar Bibi on 2.3.2001. The appellant claims that Gulzar Bibi, later on, died leaving behind only two heirs i.e. Kaki Bibi, mother, and the present appellant. The respondent, Kaki Bibi, without the knowledge of appellant, filed an application for transfer of legacy of Gulzar Bibi. The appellant also filed an application alongwith an affidavit and other record to justify his claim. The Municipal Corporation, Mirpur, without hearing and taking into consideration the application filed by the appellant, and other record, illegally transferred the disputed piece of land to Kaki Bibi vide order dated 9.6.2011. The appellant, feeling aggrieved challenged this arbitrary act of the Administrator Municipal Corporation, Mirpur, through a writ petition on 27.7.2011 which was admitted for regular hearing. However, finally, through the impugned judgment dated 16.8.2012, the writ petition has been dismissed on the sole ground that declaration has been sought regarding disputed matter in which the Civil Court is only competent forum.
3. Ch. Shah Wali, Advocate, the learned counsel for the appellant, after discussion of necessary facts stressed on the point that the impugned judgment is telegraphic one. The learned Judge, High Court failed to take into consideration the material brought on record as well as the legal propositions raised for resolution. He has forcefully stressed that it is not the question of declaration rather the appellant in writ petition has challenged the arbitrary and illegal act of the Municipal Corporation. The Administrator being local authority is performing functions with the affairs of the Azad Jammu and Kashmir whose acts are subject to judicial review of the Constitutional Court under the provisions of Section 44 of the Interim Constitution Act, 1974. While referring to the record of High Court, he submitted that the appellant alongwith writ petition has placed on record the documents Annexures P/2 to P/12, most of which are certified copies of the record of Municipal Corporation and copies of the affidavits dealing with the question of facts. But regrettably, none of these documents have been considered or referred in the impugned judgment. According to the statutory provisions of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, in the writ jurisdiction, question of facts are ordinarily to be resolved through affidavit. The High Court is also vested with the powers if for the ends of justice, any other mode or evidence is required, the High Court can direct the party to do the needful. He further submitted that in the light of the record placed before the High Court, it is fully established that the impugned order of the Administrator Municipal Corporation, Mirpur, on the face of it is illegal, arbitrary and capricious, hence, not sustainable. As the learned Judge, High Court has failed to properly appreciate the record, hence, the impugned judgment is result of misconception of facts, hence, is not sustainable.
4. Conversely, Mr. M. Ramzan Dutt, Advocate, the learned counsel for the respondents, while controverting the arguments of learned counsel for the appellant, submitted that the impugned judgment is quite in accordance with the principle of law and administration of justice which does not call for any interference. He firstly submitted that according to nature of writ, the complex factual proposition raised requires detailed inquiry and recording of evidence which is beyond the scope of writ jurisdiction, hence, the writ petition has been rightly dismissed and this appeal has no substance.
5. We have seriously considered the arguments of learned counsel for the parties and also perused the record made available. The impugned judgment reveals that it is very precise one. The writ petition has been decided on the sole ground that the appellant has prayed for declaration that he is entitled to get 2/3rd of the shares in the disputed piece of land. This is a question of fact. Without appreciation of the pleadings of the parties as well as the record appended with the writ petition, the whole findings and conclusion reached at by the High Court consist of few lines which reads as follows:--- "4 .................... It is an admitted fact that the petitioner has prayed to declare that he is entitled to get 2/2 shares of the disputed piece of land. This fact has to be proved by the petitioner that he is a legal heir of Mst. Gulzar Bibi and is entitled to get shares from the legacy of the said Gulzar Bibi. It is a settled principle of law that where declaration has to be made or facts regarding the disputed matter have to be proved, no writ petition is competent. Only the Civil Court is competent to resolve the matter in hand. No need is required to go into details of the present controversy. It is clear through the admitted facts that no writ petition lies regarding the controversy between the parties and the petitioner has got no locus standi to file the instant writ petition."
Thus, according to ow study, the impugned judgment is lacking the required ingredients in the light of peculiar facts of this case.
6. The main controversy in this case rests upon the order of Municipal Corporation dated 9.6.2011 which reads as under:- {{URDU TEXT}} (1"
25+50...t--e_lf..rwLL283-J2.:.0; r.4,,,OLLfirrrt:21.3.2001...,,,1154-55/-1 ifs- ,t411iv-.4(LPS ,03,(S4,4,1A4,5,,_ ilkij f io ,f)rf u,(Pfi Lr: ifjc; j' t c6,4 Jac y y .f .4,26.3.2011 '418-19 2152,,i,Luj,);:"SLPSIti--)=?i.Y1:-- ;*":..- 25+50,..1- L. L 1.4.J6..-651)L.
Tifj F/1 Thus, the order itself speaks that the appellant has filed the application regarding the transfer of the disputed plot. Notice was issued on 26.3.2011 for recording the statement and production of other proof but he failed. Thus, except Kaki Bibi there is no other heir of Gulzar Bibi, deceased.
7. The wording of the notification if examined in the light of the documents produced by the appellant alongwith writ petition i.e. Annexures P/2 to P/12, especially P/5, P/6, P/11 and P/12, one can only draw the conclusion that the order has been issued by the Administrator Municipal Corporation, Mirpur, without application of mind. In the order, it has been mentioned that notice was issued on 26.3.2011 whereas according to certified copies issued by the Municipal Corporation, Annexure, P/5, the appellant has submitted an application on 25.4.2011 before Municipal Corporation. Same like, the certified copy, Annexrue, P/6 also contains the orders of the Administrator, through which application has been referred to the Estate Officer with the direction that the matter should be resolved in the light of the contents of the application and if felt necessary, the opinion of legal advisor for ascertaining the shares of the legal heirs of the deceased may also be obtained and till that the matter be kept in abeyance. Certified copy of the application presented to the Estate Officer Municipal Corporation on 25.4.2011 also speaks that alongwith this application, affidavits sworn in by three persons, i.e. Molvi Muhammad Hussain, Nazeer Ahmed and Jamal Din were also filed. Photo-stat copies of the same are also placed on record of the High Court as Annexures P/8 to P/10. The appellant also submitted in support of his contention the affidavits of Raja Nazir Hussain and Noor Hussain in the High Court, as Annexures P/11 and P/12. The appellant also placed on record the photo-stat copy of the record of Municipal Corporation, Annexure, P/3 which consists of the opinion of legal advisor in which the appellant- petitioner has been declared entitled to 2/3rd share in the disputed land. He has specifically, in ground " " of the writ petition, referred to these documents and requested for summoning the original record from the Municipal Corporation.
8. It is very amazing that all this citerial has been over-sighted by the learned Judge of the High Court and the same is not referred in the impugned judgment. In this state of affairs, without any further deliberation, for this sole reason, the impugned judgment is not sustainable.
9. The opinion of High Court that declaration can only be sought from the Civil Court is also not in consonance with the Constitutional provisions as well as the principles of administration of justice.
Under the provisions of Section 44 of the Interim Constitution Act, 1974, the High Court is also vested with the powers to declare any act as without lawful authority. In the instant case, the appellant's main grievance is regarding the proceedings conducted by the Municipal Corporation which culminated into order dated 9.6.2011. Undisputedly, respondent No. 1 is a local authority dealing with the affairs of Azad Jammu and Kashmir. Its actions are subject to judicial review of the High Court under the provisions of section 44 of the Interim Constitution Act, 1974.
10. In the impugned judgment, another reason advanced is that the writ petition cannot be granted on the question of facts. In our considered opinion, there can be no hard and fast rule or inflexible rule of universal application. The statutory provision of Rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, empowers the High Court to determine all the question arisen for determination in the writ petition ordinarily on affidavits and document. The Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it to be just. In this statutory provision, the High Court is vested with the powers in the light of the circumstances of the case and for administration of justice, to determine the question of facts. The superior Courts in this regard have enunciated the principle of law that if any question of fact on the basis of material available with the Court can be determined or through evidence can be ascertained, in such cases, exercise of writ jurisdiction cannot be declined merely on the ground that the question of facts are involved. However, where some complicated, intricate and complex question of facts which on the basis of available material cannot be determined or require detailed inquiry are involved, in such-like cases, some times, the Courts declined to exercise their discretionary writ jurisdiction. Whereas in the instant case, the moot point whether the order of Municipal Corporation is passed after due application of mind can easily be determined in the light of the material available on record of the file, particularly, the certified copies of the documents of the record lying with the Municipal Corporation. Therefore, it is not a case to be thrown out merely on the pretext that being involving question of facts, writ jurisdiction cannot be exercised. Our this view finds support from the cases reported as Ch. Muhammad Mahmood v. Aurangzeb and 6 others [1997 CLC 1708] wherein this Court while attending the identical proposition has observed as under:- "7. It was also observed in the judgment under appeal that such disputed questions could not be resolved by this Court in writ jurisdiction. We may observe that the questions involved in the present case can be easily resolved in the light of the documentary evidence produced by the parties. Even otherwise, where no other adequate remedy is available it is the duty of the Court exercising writ jurisdiction to decide disputed questions of fact if it is possible to do so in the light of affidavit or other evidence produced by the parties."
Same like in another case reported as Muhammad Aslam v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 3 others [2005 CLC 1979], the Court has directed the High Court to hold inquiry to resolve the matter if need arises. Relevant portion of the judgment is reproduced below:- - "7. The appellant has filed a Constitutional petition for issuance of the requisite direction on the ground that he was a lawful owner of the land in dispute which is in possession of the respondents who are not paying the rent nor have got acquired the land. In view of the fact that the learned Judge in the High Court entertained certain doubts about the allotment and also proceeded to dismiss the writ petition on the ground that disputed questions of fact are involved which, according to him could not be resolved, we do not want to decide the matter on this record and remand it to the High Court to decide the writ petition after resolving the question of validity of allotment and to make inquiry in any manner if need so arises. The appeal is accepted as indicated above."
This Court while attending the arbitrary actions of local authority, like Mirpur Development Authority on the scope of writ jurisdiction in the case reported as Riaz Ahmed v. Mirpur Development Authority Mirpur through Chairman and 4 others [2000 YLR 2050], has observed as follows:--- "3. In view of the bar of jurisdiction contained in the provision reproduced above, the only safe remedy available to an aggrieved person is to file a writ petition to challenge the actions of the Mirpur Development Authority or any of its functionaries. Therefore, the doors of the High Court have to be kept open to grant relief to the aggrieved persons and if any question of fact is involved it is the duty of the High Court to record evidence, where necessary, and also to embark upon appreciation of evidence. There is plethora of judgments of this Court as well as of the High Court on this point but it should suffice to reproduce rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 which specifically lays down that all necessary questions shall be decided after recording of evidence. Rule 38 runs as follows:--- '38. All questions arising for determination under rules 31 to 36 shall be decided ordinarily upon affidavits and documents but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deemed fit and in that case it may follow such procedure and may pass such order as may appear to it to be just.'
It may also be pointed out that the learned Judge himself ordered the Estate Officer to appear before the Court to produce the relevant map and when the map was produced before the learned Judge, he not only examined it but also recorded a finding against the present appellant."
11. The impugned order of the Municipal Corporation, when examined in the light of record, especially, the certified copies issued by the Municipal Corporation itself appears to be arbitrary, capricious and passed without application of mind. In this state of affairs, it hardly requires any further proof to declare this order as illegal and invalid. According to statutory provisions and in the light of peculiar facts of this case, it is the duty of the Municipal Corporation to settle the relevant question of entitlement of the person as allottee or as legal heirs in a judicious manner while transferring any plot falling within its domain.
12. In the instant case, the Municipal Corporation has failed to discharge its duties according to law, therefore, it is not the case where declaration from the Civil Court has to be sought. In view of the special facts of this case, the Municipal Corporation itself has to settle the controversy among the parties.
As we have hereinabove observed that the impugned judgment is passed without proper appreciation of the material and application of mind which is not sustainable but the question arises that whether the matter should be remanded to the High Court for fresh decision or writ should be granted by this Court. As the order passed by the Municipal Corporation is not sustainable, therefore, it will not be useful to once again remand the matter to the High Court to force the parties to face another round of litigation, therefore, to meet the ends of justice, while accepting this appeal, impugned judgment is set aside. Consequently, while setting aside the order passed by Municipal Corporation dated 9.6.2011, the respondents No. 1 to 3 are directed to determine the question of legal heirs of Mst. Gulzar Bibi, within two months' period according to law.
The appeal is accepted with no order as to costs.