M. TABASSUM AFTAB ALVI, J.---The supra titled writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, I proposed to decide the same through this single judgment.
3. The precise facts culminating into filing of Writ Petition No.2015 of 2012 are that land measuring 3899 kanals 15 marlas situated at Mirpur was acquired for construction of 'Mangla Dam, vide Award No.261 dated 29-6-1964. The land in dispute comprising survey Nos. 1157, 1158, 1160, measuring 187 Kanals 1 marla, situated in village Bandral, which was vested in Mirpur Development Authority, was do-warded in favour of landowners by Government-respondent vide notification dated 19-6-2001.
The aforesaid land, however, prior to notification supra was utilized by Mirpur Development Authority,through creating plots in a housing scheme. As per claim of petitioner No.1, he was allotted plot No.57 measuring 1 kanal, who was also granted possession thereof vide order dated 2- 9-1987. He was granted permission to raise construction on the above plot by Mirpur Development Authority on 5-11-1987 and was also granted water supply connection by Public Health Engineering Sub-Devision, Mirpur, as per law on 12-6-2012. Similarly plot No.561 measuring 1 kanal was allotted to petitioner No.2 vide order dated 17-2-1988. He was handed over possession of Plot on 17-2-1988 and was granted permission to raise construction by Mirpur Development Authority upon the aforesaid plot vide order dated 18-6-2011. Likewise petitioner No.3 was allotted plot No.560 measuring 1 kanal vide order dated 17-2-1988. He was handed over possession of the aforesaid plot on 17-2-1988. The said petitioner was also granted permission to raise construction upon the aforesaid polot vide order dated 18-6-2011. Similarly petitioner Not.4 was allotted plot No.562 measuring 1 kanal vide allotment order dated 18-1-1988. He was also handed over possession of plot on 18-1-1988. The said petitioner was granted permission to raise construction upon the said plot vide order dated 23-9-1998 and 18-6-2011 respectively. In the same manner, petitioner No.5 was allotted plot No.564 measuring 10 marlas, which was originally allotted to one Ziaullah vide order dated 4-6-1989 who transferred the same to one Ch. Allah Dad on 26-7-1989 and ultimately it was transferred to aforesaid petitioner on 28-6-1993. He was also handed over possession of the plot supra vide order dated 8-10-1997 and was granted permission to raise construction upon the aforesaid plot on 6-2-1994. Likewise petitioner No.6 was allotted plot No.564-A measuring 10 marlas vide order dated 14-2-2011. He was handed over possession of the plot on 1-7-2011 and was granted permission to raise construction vide order dated 2-7-2011. Similarly petitioner No.7 was allotted plot No.554 vide order dated 3-1-1988. He was handed over possession of the aforesaid plot vide order dated 30-4-1998 and was granted permission to raise construction upon the said plot vide order dated 18-6-2011. As land in dispute was utilized by Mirpur Development Authority by launching housing scheme and possession of the plots had already been handed over to the allottees, therefore, in the aforesaid perspective of the matter, notification dated 19-6-2001, was withdrawn by the Government-respondent, vide notification dated 21-10-2004. Against the aforesaid notification dated 21-10-2004 and seeking declaration about creation of plots by Mirpur Development Authority as unlawful, Writ Petition No.170 of 2004 titled Ch. Nazar Hussain and 7 others v. Azad Govt. And 72 others was instituted on 9-12-2004 which was dismissed on merit by this Court vide judgment dated 8-6-2011. Another Writ Petition No.374 of 2004 titled Molvi Bashir Ahmed and 4 others v. Azad Govt. And 41 others was also filed on 3-9-2004, which too was dismissed vide judgment dated 8-6-2011. Against the aforesaid judgments of this Court two civil petition for leave to appeals No.104/2011 titled Molvi Bashir Ahmed and others v. Azad Govt. And others as well as 105/2011 titled Ch. Nazar Hussain and others v. Azad Govt. And others were filed before the apex Court in which after hearing leave was granted vide consolidated order dated 19- 8-2011. However, despite the aforementioned judgments of this Court and allotment of plots of the land in dispute to petitioners who were also enjoying possession thereof, Proprietary rights weregranted in favour of affectees of ,Mangla Dam of village Bandral by Government-respondent, with direction to allot 2 kanals land as per family without obtaining any price vide impugned notification dated 13-12-2012. The petitioners havechallenged vires of the aforesaid impugned notification, as consisting of malice, outcome of colourable exercise of powers, issues without providing an opportunity of hearing to allottees and as a political bribe, through the instant constitution petition.
4. After admission of writ petition the respondents were summoned for filing written statement, however, comments filed by Board of Revenue, respondent No.2, dated 12-6-2013, were treated as written statement of official respondents, vide order dated 21-11-2013. A perusal of the same reveals that the contents of writ petition pertaining to launching scheme by Mirpur Development Authority and allotment of plots in favour of petitioners and others have not been controverted. It is stated that due to issuance of the impugned notification lot of complications have been created. The writ petition, however, has been controverted by private respondents Nos.5 and 6 through separate detailed written statement, wherein it is stated that petitioners have got no locus-standi to file the instant writ petition. It is further stated that land in dispute was granted to affectees of village Bandral for residential purposes in the year 1965-66 through Land Commission after obtaining development charges and ultimately the same was de-awarded vide notification dated 19-6-2001.
It is claimed that land in question was continuously in possession of inhabitants of village Bandral which was purchased by them from the concerned department after obtaining N.O.C. From WAPDA. It is alleged that certain forged and fabricatedallotments were issued by Mirpur Development Authority, however, the same were abrogated by recognizing rights of inhabitants of village Bandral in the year 1989. It is further alleged that petitioners were highly influential persons, who obtained fabricated allotments without any layout and against the reports of high officials of the Land Commission. It is maintained that contesting respondents had developed the land in dispute in the shape of construction of houses and plantation. The allotment of petitioner Javeid Iqbal pertaining to plot No.127 was, however, admitted as correct while rest of the allotments were controverted as outcome of fraud and prayed for dismissal of petition.
5. The brief facts of Writ Petition No.175/2012 are that petitioner is first class State Subject of Azad Jammu and Kashmir hails from village Bandral, Tehsil and District Mirpur. The petitioner claimed ownershop of landed property along with other owners of village Bandral which was awarded by Government for Mangla Dam Raising Project on 29-6-1964. It is averred that Mangla Dam affectees were compensated by de-awarding the disputed land vide notification dated 19-6-2001. It is stated that after obtaining N.O.C. From WAPDA, the petitioner and others were granted Proprietary Rights by the Government, however, the aforesaid notification was cancelled vide notification dated 21- 10-2004. The notification dated 21-10-2004 was challenged before this Court by filing two separate Writ Petitions No.120 of 2004 titled Ch. Nazar Hussain and 7 others v. Azad Government and 72 others and No.374 of 2004 titled Molvi Bashir Ahmed and 4 others v. Azad Govt. And 41 others, which were dismissed by this Court vide judgment dated 8-6-2011. However, against the aforesaid judgmentsappeals were pending before the apex Court and after accepting claim of petitioner and others notification dated 13-9-2012 was issued, hence, applications for withdrawal of appeals were filed. It is averred that respondents once again determined to cancel notification dated 13-9- 2012 and in this regard, a proposal was framed by Mirpur Development Authority, hence, petitioner constrained to file the instant constitution petition.
6. The official respondents despite obtaining several opportunities failed to file written statement, therefore, were proceeded ex parte vide order dated 7-5-2014. However, private respondents Nos. 6 to 12 have controverted the contents of writ petition on the same facts and grounds as enlisted in Writ Petition No.2015 of 2012, which are not repeated here for the sake of brevity.
7. The summary of Writ Petition No.2062 of 2012 is that plot No.127 measuring 10 marlas out of the land in dispute comprising survey Nos. 1157, 1158 and 1160, which was vested in Mirpur Development Authority for creation of plots, was allotted to one Muhammad Haneef, which was ultimately after various allottees was purchased by petitioner No.1 Javed Iqbal on 29-9-2007. The aforesaid plot allegedly was in possession of petitioner No.1 who constructed boundary wall after obtaining permission from Mirpur Development Authority. Similarly plot No.127-A measuring 574 square yards was allotted in the name of one Muhammad Zaman on 2-5-1997 and lastly it was transferred to petitioner No.2 Abdul Jabbar on 29-9-2007. As per claim of petitioner No.2 possession of the aforesaid plot was lying with him, who also constructed boundary wall after obtaining permissionfrom Mirpur Development Authority. The petitioners on the same facts and grounds as enlisted in Writ Petition No.2015 of 2012 have challenged the impugned notification dated 13-12-2012, through the instant constitution petition.
8. After admission of writ petition, the respondents were directed to file written statement, however, despite pbtaining several opportunities they failed to do the needful, therefore, were proceeded ex parte vide order dated 21-11-2013.
9. Raja Muhammad Hanif Khan, the learned counsel for petitioners in Writ Petitions Nos. 2015 and 2062 of 2012 vehemently argued that land in dispute was de-awarded by Government vide notification dated 19-6-2001, however, as before issuance of the aforesaid notification, the land was vested in Mirpur Development Authority, which launched scheme and after due process allotted plots to various allottees including his clients, therefore, after obtaining reports from Board of Revenue and other concernedofficial respondents, the aforesaidnotification was cancelled through notification dated 21-10-2004. He maintained that against notification dated 21-10-2004, Writ Petitions Nos. 120 of 2004 titled Ch. Nazar Husain and 7 othersv. Azad Government and 72 others and 374 of 2004 titled Molvi Bashir Ahmed and 4 others v. Azad Govt. And 41 others were filed before this court which were dismissed on merit vide even dated judgments 8-6-2011. Against the aforesaid judgments two appeals were subjudice before the apex Court which were ultimately withdrawn, therefore, the matter was already adjudicated upon, hence, the impugned notification is violative of the aforesaid judgments. The learned counselpressed into service that land in dispute was vested in Mirpur Development Authority and after due process by making plots, the same were allotted to petitioners who were also granted possession thereof, as well as permission to construct boundary walls, therefore, a vested right was created in favour of the aforesaid petitioners, hence, disputed land was not available for transfer. He further argued that before cancelling plots of allottees an opportunity of hearing was not granted to him, hence, the impugned notification offended t,he cardinal principle of audi-alteram-partem. The learned counsel emphasized that state property could not be granted by Government without making law andgetting price, hence, the impugnednotification, whereby valuable land of Mirpur Development Authority, allotted to the petitioners are others was granted to inhabitants of village Bandral without any price as a political bribe, through the impugned notification which ought to be struck down as such. The learned counsel in support of his contentions referred to and relied upon the following case law case:--
(i) Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655.
(ii) Abdul Rasheed and 85 others v. Board of Trustees and 3 others (2008 SCR 817).
' In case of Ghulam Rasool and another, ibid, it was held by the apex Court that Government and other public authorities had not discretion to distribute the State property as charity. It was further held that Government without making law according to spirit of section 52-A of Azad Jammu and Kashmir Interim Constitution Act, 1974, could not transfer the land to any person or even exchange the same.
' In case of Abdul Rasheed and 85, supra, it was held by the apex Court that accrued rights cannot be taken back even by retrospective legislation.
10. Messrs Muhammad Yaqoob Khan Mughal and Khurshid Anwar Mughal,Advocates for contesting privaterespondents Nos. 5 and 6 in Writ Petition No.2015 of 2012, who also appeared on behalf of Ch. Muhammad Ishaq (co-petitioner) strenuously argued that Government was competent to grant Proprietary Rights of land in dispute to affectees of Mangla Dam. The learned counsel maintained that land in question could not be allotted by Mirpur Development Authority, hence, the allotments made in favour of petitioners Muhammad Ayub and others were unlawful, therefore, the same were rightlyabrogated through the impugned notification dated 13-12-2012. The learned counsel emphasized that inhabitants of village Bandral were living there in dwelling houses whose ancestors were owners, hence, no illegality was committed by Government while transferring disputed land without any price to their clients and submitted for dismissal of Writ Petitions Nos.
2015/2012, 2062/2012 and craved for acceptance of Writ Petition No.175 of 2012 of co-petitioner. The learned counsel referred to an unreported judgment of the apex Court passed in Civil Appeal No.163 of 2002 titled Syed Nazir Ahmed Gillani and 12 others v. Azad Govt. And 5 others decided on 19-10-2007.
11. After hearing the learned counsel for parties at great length, I have perused the contents of writ petitions and examined the appended documents with utmost care.
12. A contemplate perusal of record reveals that land measuring 3899 kanals 15 marlas situated at Mirpur was acquired by Government-respondent for construction of Mangla Dam Raising Project through award No.261 dated 29-6-1964. It appears that disputed piece of land comprising survey Nos. 1157, 1158, 1160 measuring 187 kanals, 1 marla situated in village Bandral, could not be utilized for construction of Mangla Dam. However, as per section 15-A of the Azad Jammu and Kashmir Mirpur Development Authority ,Ordinance, 1974, the same was vested in and be under the control of Mirpur Development Authority, which is-reproduced as under:- 715-A. Notwithstanding anything contained in any other law for the time being inforce, all property of the following nature situated within the 'Specified Areas' shall vest in and be under the control of the authority and shall be held and applied by it for the purposes of this Act:-- ' All lands or other property already acquired for the construction of new Mirpur Town and Hamlets and other townships on the periphery of the Mangla reservoir;
(ii) All lands or other property which may be acquired by purchase, lease, exchange or compulsoryacquisition under LandAcquisition Act, 1894, by the Authority;
(iii) All lands or other property which may be transferred to the Authority by the Government or any other Agency for purposes of control and management or for any other purposes under this Act.]" As per clause (i) of section 15-A of Mirpur Development Authority Ordinance, 1974, all lands or other property already acquired for the construction of new Mirpur Town and Hamlets and other townships on the periphery the Mangla reservoir vested in Mirpur Development Authority. After due process, the said Authority allotted plot No.557, measuring 1 kanal to petitioner Muhammad Ayub, plot No.561, measuring 1 kanal to petitioner Muhammad Maroof, plot No.560 measuring 1 kanal to petitioner Abdul Shakoor, plot No.562 measuring 1 kanal to petitioner Abdul Ghafoor Qureshi, plot No.564, measuring 10 marlas to petitioner Muhammad Iqbal, plot No.564-A measuring 10 marla& to petitioner Muhammad Saleem, plot No.554 measuring 1 kanal to petitioner Raja Khizar Hayat, plot No.127 measuring 10 marlas to petitioner Javid Iqbal, while plot No.127-A measuring 10 marlas to petitioner Abdul Jabar. The aforesaid land was de-awarded in favour of original owners, as per section 48 of Land Acquisition Act, 1894,videnotification dated 19-6-2001.
' However, when it transpired to Government-respondent that the land in dispute was vested in Mirpur Development Authority, which had already allotted the same to various allottees, hence, the aforesaid notification was cancelled vide notification dated 16-11-2004. Against the aforesaid later notification two Writ Petitions No.120 of 2004 titled Ch. Nazar Hussain and 7 others v. Azad Govt. And 72 others and No.374/2004 Molvi Bashir Ahmed and 4 others v. Azad Govt. And 41 others were filed before this Court. Admittedly, both the writ petitions were dismissed vide even dated judgments 08.06.2011. It reflects from record that(co-petitioner) Ch. Muhammad Ishaq was party in the earlier litigation. Against theaforesaid even dated judgments of thisCourt with leave of the apex Court two appeals titled Ch. Nazar Hussain and othersv. Azad Govt. And others and Molvi Bashir Ahmed and others v. Azad Govt. And others were filed which were admittedly withdrawn from the Hon'ble Court.
It further reflects from record that the apex Court in the aforesaid appeals issued status-quo order pertaining to land in dispute on 01.08.2011, which was confirmed vice order dated.
19.08.2011. The Government-respondent, Board of Revenue,Commissioner Mirpur Division and Deputy Commissioner Mirpur, were party, however, despite stay order maintained by the apex Court of the state, the respondents issued the impugned notification dated 13.12.2012, in violation of the aforesaid orders, hence the same is liable to be struck down on this solitary ground.
13. A glance perusal of record reveals that Mirpur Development Authority, after due process and obtaining price, allotted the plots to various persons including petitioners Muhammad Ayub and others as well as Javid Iqbal and others, petitioners in Writ Petitions Nos.2015/2012 and 2062/2012.
Against the aforesaid allotments neither any appeal or any revision nor representation was filed by inhabitants of village Bandral which had got finality under law. Therefore, at the time of issuance ofthe impugned notification dated13.12.2012, the land was not available for allotment by Government- respondent, which stood already allotted, hence, the impugned notification is accordingly bad in law.
14. The allotment of petitionersMuhammad Ayub and others were cancelled by the Government- respondent in violation of cardinal principle of audialteram-partem. They were neither served through show cause notices nor opportunity of hearing was provided to them, hence, the impugned notification was issued by violating cardinal principle of natural justice which cannot be allowed to remain in field as such.
15. The impugned notification dated 13.12.2012, makes it abundantly clear that land vested in Mirpur Development Authority, was transferred by Government respondent to inhabitants of village Bandral without obtaining its price and other development charges, that too without framing statutory law, like charity basis, hence, the aforesaid transfer is unlawful. An identical point came under consideration before the apex Court in case titled Ghulam Rasool and another v. Said Ahmed and others [2012 SCR 3671 At page 377 of the report it was held as follows:-- "12. The appellants failed to refer to any other provision of law empowering the Government to transfer the land to private persons. It is settled principle of law that things should be done according to prescribed mode and not otherwise. This principle of law has been followed by this Court in numerous pronouncements. Reference may be made to a case reported as 2004 SCR 23 and 378, wherein it has been held that if a thing is to be done in a particular way, it should be done in that way and manner as prescribed or should not be done at all. Therefore, we are constrained tohold that the Government, under the law enforced in the Azad Jammu and Kashmir, without making law according to spirit of section 52(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot transfer the State land to any person or exchange the same.
13. So far the powers bestowed upon the Government under the Land Acquisition Rules, are concerned, these are conditional only to the extent of acquired land and that too can only be transferred to such a person for whom under law, the Government can acquire the land. Thus, the whole transaction in this case is without lawful authority. It is now settled principle of law that any act without lawful authority does not create any interest or legal rights in favour of the beneficiaries."
16. A glance perusal of record also reveals that land in question was previously restored in favour of land owners by Government-respondent while exercising its powers as visualized under Section 48 of the Land Acquisition Act, 1894, vide notification dated 19.06.2001. However, when Government was apprised that land in dispute had already been allotted to various allottees by Mirpur Development Authority, hence, the aforesaid notification was cancelled through notification dated 21.10.2004.Against the aforesaid later notification, though at the cost of repetition it is reiterated, that two writ petitions were filed before this Court, which after hearing were dismissed vide even dated judgments 08.06.2011. Against the above mentionedjudgments of this Court two appeals were filed which were withdrawn from the apex Court, therefore, in view of earlier judgments dated 08.06.2011, the matter was already finalized which could not be reopened due to principles of res judicata and estoppel.
17. From perusal of the impugned notification dated 13.12.2012, it reveals that 187 kanals 01 marla land was granted by Government-respondent to inhabitants of village Bandral as 02 kanals per family. Except co-petitioner Ch. Muhammad Ishaq, nobody has filed any writ petition for redressal of their grievance. It appears that except co-petitioner, none else is interested in litigation who is alone contesting case on baseless grounds. The aforesaid co-petitioner has got no locus-standi to file writ petition for whole piece of land consisting of 187 Kanals 1 marla that too without seeking permission from the Court as per Order I rule 8 of Civil Procedure Code. The learned counsel for co- petitioner referred to an unreported judgment of the apex Court passed in Civil Appeal No.163/2002 titled Syed Nazir Ahmed Gillani and 12 others v. Azad Govt. And 5 others decided on 19.10.2007, which case having no nexus with the instant case.
18. The crux of above discussion is that by accepting Writ Petitions Nos.2015/2012 and 2062/2012, the impugned notification dated 13.12.2012 is declared as without lawful authority, hence, having no legal effect. Consequently, Writ Petition No.175/2012 is dismissed with costs.