Raja Saeed Akram Khan, J.-- The titled appeal by leave of the Court has been preferred against the judgment passed by the High Court on 24.06.2014, whereby the writ petitions filed by respondents No.1 to 9, herein, have been accepted.
2. The brief facts of the case are that the land measuring 3899 kanal, 15 marla situate at Mirpur was acquired for construction of Mangla Dam vide Award No.261, dated 19.06.1964. The land in dispute comprising survey Nos.1157, 1158 and 1160, measuring 187 kanal, 1 marla situate at village Bandral was de-awarded in favour of the landowners by the Government vide notification dated 19.06.2001, however, the said notification was later on withdrawn by the Government through another notification dated 21.10.2004. Afterwards vide notification dated 13.12.2012, the Proprietary Rights were granted in favour of the affectees of village Bandral by the Government with a direction to the concerned authorities to allot 2 kanal land as per family without obtaining any price. Respondents No.1 to 9, herein, challenged the vires of the said notification through writ petitions before the High Court. One of the appellants also filed a writ petition for protection of the notification dated 13.12.2012. The learned High Court after necessary proceedings through the impugned consolidated judgment while accepting the writ petitions filed by the private respondents, herein, set aside the notification dated 13.12.2012, hence, this appeal by leave of the Court.
3. Sheikh Masood Iqbal and Khalid Rasheed Chaudhary, Advocates, the learned counsel for the appellants argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. They contended that the learned High Court failed to appreciate the record in a legal manner and the impugned judgment is outcome of misreading and non-reading of the record. They further contended that the Government was empowered to grant Proprietary Rights of the land in dispute to its original owners. They added that the land situate at village Bandral was in the ownership of the ancestors of the appellants and others, therefore, the Government has not committed any illegality while transferring the land to the appellants without payment of any price. They forcefully contended that the learned High Court while passing the impugned judgment wrongly applied/interpreted section 15-A of the Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974 (hereinafter to be referred as MDA Ordinance, 1974) as the same has no nexus with the proposition involved in the case in hand. They added that the land in dispute was allotted/de- awarded to the appellants in the year 1966, when MDA Ordinance, 1974 was not in existence.
4. On the other hand, Raja Hassan Akhtar, Advocate, the learned counsel for the private respondents strongly opposed the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. He contended that the land in dispute was de-awarded by the Government vide notification dated 19.06.2001, whereas, prior to the issuance of the said notification the land was vested in Mirpur Development Authority. As the Mirpur Development Authority had already allotted the plots to the private respondents and others and there was no land available to be de-awarded in favour of its original owners, therefore, on the report of Board of Revenue the said notification was cancelled by the Government. The appellants filed writ petitions against the cancellation order which were dismissed vide judgment dated 08.06.2011. The appellants challenged the judgment of the High Court while filing petition for leave to appeal before this Court, however, later on the appellants withdrew the said petition, hence, the judgment of the High Court dated 08.06.2011 has attained finality. He submitted that through another notification dated 13.12.2012, the Government without providing opportunity of hearing to the respondents cancelled the allotments made in their favour and granted the Proprietary Rights of the land in dispute to the appellants without any justification. In such situation, the learned High Court has not committed any illegality while cancelling the said notification. He added that the land in dispute admittedly vested in the MDA, therefore, the learned High Court rightly applied section 15-A of the MDA Ordinance, 1974 while passing the impugned judgment.
5. Mr. Javed Najam-us-Saqib, Advocate, the learned counsel for MDA and Raja Saadat Ali Kiani, the learned Addl. Advocate-General also adopted the arguments advanced by the learned counsel for the private respondents.
6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record reveals that the appellants had been pursuing the matter since decades. To refresh the memories, the facts of the case are again discussed here. The land of the appellants and other residents of village Bandral was acquired for construction of Mangla Dam in the year 1964.
The appellants and others moved applications to the Government for allotment of the land which remained unutilized. The Government after consultation with the WAPDA made allotments in favour of the appellants' predecessors and others. The record shows that 1 kanal land was allotted to the father of appellant No.1, vide order dated 08.01.1966 and 1 kanal to the brother of appellant No.2, herein, vide order dated 05.03.1966. Later on, vide notification dated 19.07.2001, the land measuring 187 kanal, 1 marla, situate at village Bandral, was de-awarded. The said notification was cancelled vide notification dated 21.10.2004. The notification dated 21.10.2004, was challenged before the High Court by filing writ petitions by the appellants and others which were dismissed. Against the judgment of the High Court, a petition for leave to appeal was pending before this Court when the Government while accepting the claim of the appellants and other residents of village Bandral issued the following notification on 13.09.2012:- {{URDU TEXT}} In the light of the aforesaid notification, the Secretary Mirpur Development Authority addressed a letter to the Director Estate Management MDA for compliance of the notification. It was written in the letter that the alternate adjustment of the allottees, i.e., private respondents is the responsibility of the MDA and their matter shall be placed before the allotment committee. However, the allottees feeling aggrieved from the notification (supra) filed writ petitions challenging therein the validity of the same and one of the appellants, Muhammad Ishaq, also filed writ petition to restrain the concerned quarters from cancelling the notification (supra). The learned High Court while accepting the claim of the private respondents cancelled the notification (supra). The perusal of the impugned judgment shows that the learned High Court decided the writ petitions mainly on the following grounds:-
(i) that under section 15-A of the MDA Ordinance 1974, the land in question was vested in Mirpur Development Authority who after due process has already transferred the land to the private respondents, herein;
(ii) that the allotments orders of the private respondents, herein, have not been challenged by the inhabitants of village Bandral by way of appeal, revision or representation which have attained finality;
(iii) that the notification supra has been issued in violation of the stay order issued by the Supreme Court vide order dated 19.08.2011, and
(iv) that in the light of the previous judgment of the High Court dated 08.06.2011, the claim of the appellants was refused and the judgment of the High Court was challenged before apex Court but the petition for leave to appeal was withdrawn by the appellants, herein, thus, the judgment of the High Court dated 08.06.2011 has attained finality and in presence of that the Government was not justified to issue the notification (supra).
7. In view of the findings recorded by the High Court, we have examined the record minutely. So far as, the applicability of section 15-A of the MDA Ordinance, 1974 is concerned, we agree with the argument addressed by the learned counsel for the appellants that the land in question for the first time was allotted to the appellants in the year 1966 whereas, at that time no such Ordinance was holding the field, hence, the provisions of the MDA Ordinance were not applicable to the case of the appellants. The findings recorded by the High Court that the allotments of the private respondents have not been challenged by the inhabitants of village Bandral, are also not supported by the record, as there are many documents available on record to show that the inhabitants of the village Bandral challenged the said allotments at different forums. For reference an order issued by the MDA on 25.02.1989 is reproduced here which reads as under:- {{URDU TEXT}} Furthermore, the cancellation of the allotments made in favour of the private respondents by different orders of the concerned authorities, is also the result of the efforts made by the appellants and other inhabitants of the village Bandral, therefore, it cannot be said that the allotment orders of the respondents have never been challenged by the inhabitants of village Bandral. The view taken by the High Court that the notification dated 13.09.2012, through which the Government while accepting the claim of the appellants cancelled the allotments made in favour of the private respondents and allotted the land measuring 2 kanal without payment of price to the affectees of Mangla Dam, was issued in violation of the stay order issued by this Court vide order dated 19.08.2011, is also not appealing in nature. This Court after ascertaining that the appellants succeeded to make out a prima facie arguable case; balance of convenience lies in their favour and if the stay order is not issued the appellants are the persons who will suffer irreparable loss, passed the stay order. Keeping in view the phraseology and object of the stay order, we are satisfied that no violation of the stay order issued by this Court has been committed by the Government while accepting the claim of the appellants. Even otherwise, if the respondents have felt that the notification has been issued in violation of the order of this Court, they had the opportunity to approach this Court but no proceedings have been taken in this regard. The version of the High Court that the previous judgment of the High Court dated 08.06.2011, through which the writ petitions of the appellants and others were dismissed has attained finality, keeping in view the circumstances of the present case is also not tenable. It is an admitted position that against the judgment of the High Court the appellants filed a petition for leave to appeal before this Court and during the pendency of petition for leave to appeal the Government issued notification dated 13.09.2012, through which the grievance of the appellants was redressed and the petition for leave to appeal was dismissed as withdrawn. In such state of affairs, when after the judgment of the High Court the Government accepted the claim of the appellants and there was no justification for the appellants to pursue the matter before this Court, it cannot be said that the previous judgment of the High Court has attained finality.
8. In view of the above, it appears that the impugned judgment is based on misconception of law and facts of the case. The appellants are the residents of village Bandral and their ancestral property was acquired for construction of Mangla Dam. It is settled law that the property acquired for the public purpose vests in the President of Azad Jammu and Kashmir and the same cannot be transferred without following the prescribed legal manner and mode to any other person, whereas, in the instant case no such document is available on record to show that the land in dispute was duly transferred to the MDA. This Court has time and again held that if the land acquired for the public purpose is utilized accordingly and some land remains unutilized the same can be used for any other public purpose, however, such public purpose should be reflected from an approved scheme of the Government, whereas, the respondents failed to substantiate any such approved scheme. It may also be observed here that under law if the acquired land wholly or a portion of it remains unutilized; the same may be utilized for any other public purpose or the same shall be reverted back to its original owner in due course of law. Reference may be made on a case reported as AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382], wherein while dealing with the proposition it has been held that:- "This Court has time and again held in numerous cases that if the land of a citizen is acquired for the public purpose and the same is not utilized for that purpose, the said land can be utilized for any other purpose. If the acquired land as a whole or any portion of it remained unutilized, the same shall be reverted to its original owner but in the instant case the land acquired for new Industrial Estate has been allotted to a private party."
In the instant case, the unutilized acquired land is allotted to the original owners and the allotments of the private respondents have also been protected by the Government while holding that it is the liability of the MDA to make the adjustments of the allottees by making allotments of the alternate plots. It reflects from the record that in compliance of the Government notification, the MDA has already taken the measures for accommodation of the private respondents, therefore, it can be said that no injustice has been caused to the private respondents by the Government while issuing the notification dated 13.09.2012.
For the forgoing reasons, we accept this appeal and set aside the judgment of the High Court. The writ petitions filed by the private respondents, herein, for setting aside the Government notification dated 13.09.2012, are hereby dismissed while the writ petition filed by appellant No.2 herein, for protection of the notification (supra) is accepted and the concerned authorities are directed to restrain from cancelling the same. In the best interest of justice, we also deem it proper to direct the MDA to adjust such legal allottees who have been affected by the notification dated 13.09.2012, within a period of three months positively from the communication of the order of this Court and submit the compliance report before this Court through Addl. Registrar Branch Registry Mirpur. No order as to costs.