MOHAMMAD SHERAZ KIANI, J.---The above captioned writ petition has been filed under Art. 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , the petitioner has challenged the alteration/modification, effected in the sector plan and creation of Plot No.178/M-1, for having been made without lawful authority . A request has also been made for direction to the respondents for restoration of the petitioner's plot to its original size and nature.
2. Precise facts, forming the background of the instant writ petition, as per claim of the petitioner are that Plot No.1 Sector D/4 Block 6-B corner 90x50 was allotted, initially in the name of Muhammad Iqbal on 06.08.1989, which, later on, stood transferred in the name of petitioner , who, obtained the approval of construction on 16.10.2003 and also raised construction, thereupon. It has been alleged that respondents Nos.3 to 9 without lawful authority , altered and changed the master plan of Section D/4 Block 6-B and extended the Sector D/3 East by overlapping Block 6-B and also created an additional plot, by reducing the size of the petitione r's plot from 50x90 and marked Plot No.178-M/1 in Sector D/3 East and the newly created plot has been allotted to Muhammad Rafiq -respondent.
It has been stated that the plot of the petitioner was also scrutinized and confirmed by the Revising authority . The petitioner has alleged that due to the mischievous allotment of non-petitioner and alteration in the master plan of the sectors, the size of the petitioner's plot, measuring 1640 sq.ft. stood reduced. It is averred that the action of official respondents is illegal, unlawful, ultra vires and without lawful authority and creation of the plot is mala fide in order to benefit the private respondent, which is not sustainable, therefore, it has been requested that by accepting the instant writ petition, the alteration, modification made in the master as well as Sector plan and allotment in favor of private respondent be set at naught.
3. The official respondents, in-spite of service of notice and taking several opportunities, have not filed written statement, therefore, their defense was closed vide order dated 09.04.2013. The respondent No.2 was proceeded ex-parte vide order dated 30.07.2018. Respondent No.1, though appeared through counsel but has not filed written statement, so, his defense shall also be deemed as has been closed.
4. Mr. Kamran Tariq, Advocate, the learned counsel for the petitioner , while reiterating the facts and grounds of the petition, vehemently , argued that the petitioner is legal owner of the plot in question and the respondents had no authority to alter or amend the master or sector plan and reduce the acreage of the questioned plot. The learned counsel emphasized the point that out of 4500 sq.ft., only 2800 sq.ft. is now available, due to creation of the new plot. The actual allotted measurement of the plot was 50x90, whereas, after creation of the new plot, the same has been reduced to 2860 sft. Due to general cancellation of the plots, the petitioner's plot was also scrutinized by Revising Authority and stood confirmed and an additional amount, ordered by the official respondents was also deposited by the petitioner , the learned counsel contended. He further submitted that under the law, the official respondents, after allotment of a plot, cannot reduce its size nor they are competent to alter/amend the master plan by converting the corner plot into an ordinary one. In support of his submission, he referred the following case law aid requested for acceptance of the writ petition:-
1. 1993 SCMR 157 , 2. 2012 CLC 928 and 3. 2000 YLR 2050 .
5. Refuting the arguments of the learned counsel for the petitioner , Mr. Yasir Mehmood Chaudhary , the learned Counsel for the respondent No.1 submitted that the petitioner has no locus standi to file the instant writ petition. He maintained that the matter in hand relates to factual inquiry , which can only be resolved after recording evidence and no relief can be granted in exercise of the extra ordinary jurisdiction of this Court.
6. I have heard the learned counsel for the parties, gone through the record of the case and considered the controversy with due care.
7. A careful perusal of the file reveals that the plot bearing No.1. Sector D/4, Block 6-B, Corner , measuring 90x50 sq.ft. was originally allotted to one Muhammad Hussain vide order dated 06.08.1989, which stood transferred in the name of the present petitioner; Shamim Akhtar vide order dated 03.09.2003. It also appears that another plot, bearing No.178/M-1 was created and allotted to Respondent No.1, which stood transferred in the name of respondent No.2 vide order dated 01.04 .1998. The case of the petitioner is that the latter plot was created by reducing the measurement and acreage of her plot and amending the sector plan without lawful authority . It is also claimed by her that due to the creation of the new plot and amendment in the master plan, the acreage and the value of the petitioner's plot has lowered down and she cannot be deprived of the benefits of a corner plot, purchased by her. There is no counter version before the Court, which may rebut the claim of the petitioner and the law is well settled on the point that the facts and claims supported by an affidavit, if remain un-rebutted, the same are considered as admitted and true, however , I have opted to scrutinize the file, critically and also gone through the relevant law .
8. As far the question of variation of the size of the plot in question is concerned. It is to be observed here that under the AJ&K Mirpur Development Authority Ordinance, 1974, although the Authority , (Board) can make some alteration according to actual requirement of a space/area but substantial changes and amendments cannot be made in a master plan without approval of the Government. My this view finds support from a case titled 'Kashmir Free Blood Bank and Welfare Center (Regd) through attorney v. Mirpur Development Authority through Chairman and 6 others , reported as 2012 CLC 928 wherein, it has been observed 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 drawin g of sector plan, original plan of Sector D-4, West Block, Drawing No.TP-0 025-88 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 , mal-administration, misconduct and illegal act on the part of above mentioned functionaries."
While creating Plot No.178/M-1, no such procedure was adopted neither the authority (The Board) nor the Government has given the requisite C approval. So, amendment in sector plan as well as master plan has been made without lawful authority .
9. Furthermore, Plot No.178/M was created in front of the plot of petitioner , which is a corner plot. The corner plot cannot be converted into an ordinary plot, after its allotment. The similar proposition came under the consideration of the apex Court of Azad Jammu and Kashmir in case titled Muhammad Iqbal v. Mst. Muneeza Begum and others [1993 SCR 157] wherein, at page 158 of the report, it has been observed as under: "We have given due consideration to the points and we are of the opinion that the allotment of the space in question would definitely adversely affect the value of the plot allotted to the respondents; because in that case not only the easy approach to the plot would be hindered but that would change the nature of the plot from a 'corner plot' to an ordinary plot. Irrespective of the fact as to whether such an allotment would change the original master plan or not, the allotment of the site in favour of the appellant is not sustainable for the simple reason that the same would definitely adversely af fect the utility , value and geographical topography of the plot of the respondents."
10. In the instant case, the petitioner's plot, (Corner plot) was allotted in the year, 1989 whereas, later on, by amending the master/Sector plan, merging and overlapping one sector into another, plot No.178/M-1 has been created, marked and also allotted to the private respondent. Due to the creation of Plot No.178/M-1, definitely , the plot No.1(6-B) has lost its significance and importance, being a corner plot as one road passing through the plot has been connected with the newly created plot, hence, it can safely be held that due to the creation of the impugned plot, Plot No.1 of the petitioner has lost its value and other connected benefits, which can be enjoyed only with a corner area, such advantages cannot be taken away . In a similar case, titled, Jamil Akhtar v. M.D.A.
Mirpur and others , Civil Appeal No. 58/1995 decided on 12.03.1996, the Hon'ble apex Court held as under:- "When the plot was allotted to the appellant as a corner plot a right became veste d 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 alteration 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.23]. 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. Subseque ntly, 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 is sanctioned by the Government. We are of the view that the fact that a facility or privilege which the appellant obtained in lieu of additional payment cannot be withdrawn by the Mirpur Development-Authority and this in itself should suffice to declare that the creation of Plot No.25-A/1 to be without jurisdiction and of no legal effect. However , thee are other points also which have been raised to impugn the creation of plot ment ioned above and its allotment in favor of respondent Muhammad Fazal to which now we advert."
11. In view of the above observations, the instant writ petition is accepted. The impugned modification of sector plan and creation of plot No.178/M-1 Sector D/3 East and its allotment in favor of the private respondent dated 01.04.1998 is illegal, without lawful authority and has no legal effect and the reduction of the size of the plot of the petitioner is also without jurisdiction and mala fide. The respondents are directed, not to encroach upon the Plot No.1 in its original size and if there is any extra land, that can be regularized strictly in accordance with law .