Identical law points and facts are involved in both the titled writ petitions, therefore, these were consolidated, taken up for arguments and are decided through this single judgment.
2. Brief facts of the Writ Petition No. 264/18, filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, by the petitioner-Abdul Majeed are that the petitioner purchased Plot No. 8-A/1 on 02.07.1990 in consideration of amount Rs. 500,000/- from the proforma respondent which was allotted to the proforma respondent on 14.06.1990. The petitioner contended that the Plot No. 8-A was allotted to the father of private Respondents No. 11, 12, 13 on 19.10.1970 and there was an open space and drain in between the Plot Nos. 8-A and 8-A/1. The Respondents No. 11, her husband and other family members got allotment of land adjacent with Plot No. 8-A, now they are again claiming about plot of petitioner. Later on the said respondents sold aforementioned land in consideration of sum of Rs. 1275000/-vide sale deed and agreement to sell dated 03.12.1994. The petitioner alleged that respondent got its allotment as an adjacent land of the Plot No. 8-A after that prepared a separate file and marked it as an independent Plot No. as 8-B by jointing land measuring 17*132 from Plot No. 8-A and its adjacent land. The said respondents prepared a separate file with collusion of each other of newly created plot bearing No. 8-B in the offices of official respondents. The petitioner alleged that Respondents Nos. 11, 12 and 13 at the behest of Respondent No. 14 instituted a Writ Petition No. 25/1992 titled "Khurshid Anwar vs. Mayor Municipal Corporation Mirpur and others" on 12.03.1992 before this Court (High Court) for seeking allotment of land. This Court directed the Chairman MDA, to decide the validity and entitlement of the disputed plot strictly in accordance with rules and regulations, after providing due hearing, vide judgment dated 22.09.2006. In compliance of the said judgment of this Court, files of the Plot Nos.
8-A, 8-B and 8-A/1 transferred to the offices of Respondents No. 7 and 8 for regularizations/Revising and settlement of issue of title of Plot Nos. 8-A/1 and 8-B. The Respondent No. 8 after perusing all relevant record of the said plots passed a detailed order on 14.02.2012 whereby the Respondents No. 7 and 8 conclusively decided that the petitioner is an exclusive owner of the Plot No. 8-A/1 and the Respondent No. 14 obtained allotment of an adjacent piece of land as Plot No. 8-B. It was also held by the Respondents No. 7 and 8 that the Plot No. 8-A/1 is an independent plot which was allotted duly in the name of the petitioner. It has been claimed by the petitioner that Respondent No. 15 who holds a defective power of attorney of the Respondents No. 11, 12 and 13 instituted a civil suit against the direction issued by this Court vide its verdict dated 22.09.2006 in the Court of Senior Civil Judge Mirpur, whereby Respondent No. 15 claimed that he is entitled to be allotted Plot No. 8- A/1 on the basis of adjacent land. The learned Senior Civil Judge after hearing both parties; rejected the plaint on 16.6.2016. After that Respondents No. 15 preferred an appeal on 24.11.2016 against the said judgment before the District Judge, Mirpur, which also met the same fate. After that a revision was filed before this Court/High Court. During pendency of revision petition, Respondent No 15 filed an application before Respondents Nos. 2 to 6 with mala-fide intention. The said respondents without affording opportunity of hearing to the petitioner and held that the record of the Plot No. 8-A/1 is suspicious and it is, necessary to revise said plot for entitlement of the plot in its unlawful and mala-fide inquiry dated 20.08.2017 and its order dated 01.03.2018. After that the petitioner submitted an application on 14.04.2018 before the Inquiry Commission to hear the petitioner, but the grievance of the petitioner has not been redressed by the said commission, however, the commission itself conceded that the commission transgressed from their domain with respect to Plot No. 8-A/1. Finally in writ petition it has been prayed by the petitioner that order dated 01.01.2018 and inquiry conducted by Respondents Nos. 2 to 6 may be set aside and respondents may be directed to refrain from transferring file of the Plot No. 8-A/1 owned by the petitioner to Respondent Nos. 7 and 8 for again revising as it has already revised in the light of the direction issued by this Court in its verdict dated 22.09.2006 bearing No. 8-A/1 situated at sector F/2 Mirpur, moreover, respondents may be directed to transfer the Plot No. 8-A/1 in the name of the petitioner.
3. Comments/written statement has been filed on behalf of Respondents No. 7 and 8 (MDA) wherein it has been averred that the claim of the petitioner to the extent of transfer of Plot No. 8-A/1 situated at Sector F/2 Mirpur is correct, however, the allotment of Municipal Corporation Mirpur has cancelled by the Apex Court in its Judgment dated 24.04.2017 in a case titled "Azeem Dat Vs. Raja Khadim Hussain and others", and now the said allotments shall be placed before the allotment Committee of MDA, which is yet to be decided by the said Committee. The respondents contended that the entitlement of claimants of the impugned plots has been referred to MDA allotment committee and petitioner may put his claim before allotment committee, MDA.
4. The Respondents No. 11 to 15 filed separate written statement wherein they negated the claim of the petitioner and contended that the petitioner has no locus standi to file this petition. They further contended that in accordance with the judgment of the Apex Court dated 24.04.2017, allotments of Municipal Corporation Mirpur were cancelled. The government of AJ&K constituted a commission for the investigation of allotments of MCM, the petitioner filed an application on 01.11.2017 for the investigation of Plot Nos. 8-A and 8-A/1 before the commission on the application of the petitioner, the commission refer the matter to the scrutiny committee on 08.11.2017 the said Committee submitted the investigation report on 01.01.2018 and declared that the basic allotment of Petitioner Plot No 8-A/1 Sector F/2 Mirpur is in the name of Muhammad Yasin S/o Noor Alam is illegal, fake, fabricated. The respondents alleged that before the allotment of the impugned plot in the name of Muhammad Yasin S/O Noor Alam it was already allotted in the name of husband of Respondent No. 11 and father of Respondents No. 12 and 13 namely Khurshid Anwar S/o Kh. Muhammad Shafi vide order dated 01.08.1989, which still holds validity alive and has not been canceled,
5. In Writ Petition No. 481/2019, the petitioner Abdul Majeed prayed as under: "It is therefore, most respectfully prayed that the impugned orders dated 30.05.2019 and order dated 01.06.2019 vide No. DEM/54-950/2019 may please be set aside by declaring it illegal, void ab- initio and mala-fide. The plot bearing No. 8-A/1 has already been revised by the M.D.A in the light of direction issued by this Court its verdict 22.09.2006."
6. Written statement has been filed on behalf of Respondents No. 7 & 8 wherein it has been contended that it is correct that Plot No. 8-A/1 was allotted in the name of Mohammad Yasin on 14.06.1990. It is also correct that writ petition titled "Khurshid Anwar vs. Mayor Municipal Corporation and others" was filed on 12.03.1992 wherein Respondents No. 9, 10 and MDA was directed for revising of the plots on 22.09.2006. It is also correct that M.D.A after revising and scrutinizing records of plots passed a detailed order on 14.02.2012, whereby it was held that Plot No. 8-A/1 is an independent plot and the petitioner is a conclusive owner of Plot No. 8-A/1. The revising of Plot No. 8-A/1 has been made twice by the answering respondents. Respondents No. 15 filed a review petition against the order dated 14.02.2012 in M.D.A on 10.01.2015 which was dismissed.
7. Written arguments have been submitted on behalf of the learned counsel for the parties. I have examined the written arguments submitted on behalf of the parties and perused the record with due care.
8. Trite and settled that disputed question of facts required probe and inquiry cannot be decided by the High Court in exercise of extraordinary Jurisdiction bestowed by the Constitution, that too where cognizance has already been taken by a statutory authority in furtherance of matter to dig out the veracity of the rival claims.
9. Termination of inquiry is not justified. Factual probe is purely job of the relevant competent authority/allotment committee which under law is presumed to know its onions. Remedy of writ is extraordinary equitable remedy available in extraordinary circumstances subject to the protocols of Article 44 of the Interim Constitution. Writ is neither substitute of the civil suit nor it can be equated with the ordinary civil litigation. Fate of civil suit is to be decided in light of the preponderance of probabilities of evidence whereas the discretionary relief in writ jurisdiction can be declined despite this the petitioner has make out a case as per record. In an identical matter the Apex Court in the case titled "Noman Razq vs. Faryad Hussain" [2014 SCR 921], ordained that factual controversy pertaining to rival claim of allotments is a disputed question Of facts and cannot be resolved by the High Court.
10. The claim of the petitioner is that the respondents may be directed to refrain from transferring file of the Plot No. 8-A/1 owned by the petitioner, to Respondents No. 7 and 8 for again revising as it has already revised in the light of the direction issued by this Court in its verdict dated 22.09.2006.
The petitioner seeking annulment the order of Respondent No. 6 dated 01.01.2018 and inquiry dated 15.03.2018 conducted by Respondents No. 2 to 6. The petitioner also seeking direction against the respondents to transfer the Plot No. 8-A/1 situated in F/2 Sector in his name. The petitioner herein also challenged the orders dated 30.05.2019 and 01.06.2019.
11. A perusal of record shows that the Plot No. 8-A/1 situated in F/2- Mirpur was allotted by the Municipal Corporation, Mirpur to Muhammad Yasin S/o Noor Alam (proforma-respondent) on 02.07.1990, which later on was sold to the purchaser/petitioner-Abdul Majeed by Muhammad Yasin.
In earlier round of litigation between the parties, this Court vide judgment dated September 22, 2006 issued direction to the MCM and MDA, which is as under: "In exercise of powers conferred on this Court under Order I Rule 10 and Section 151 of the Code of Civil Procedure, I implead Mirpur Development Authority in line of the defendants and direct it to decide the validity and entitlement of the disputed plot strictly in accordance with rules and regulation, after providing due hearing. The needful shall be done within a period of 3 months."
12. After the above direction, the relevant authority declared that the Respondents No. 11 to 15 has no concerned with the Plot No. 8-A/1.
13. The Respondents No. 7 and 8 (MDA) in Para Nos.3 to 7 of their written statement stated as under:
3. That the averments as set out in Para No. 2 is correct to the extent of allotment of Plots No. 8-A in the name of the father of Respondents No. 11, 12 and 13 and open space in between Plots No. 8-A end 8-A/1. It is also correct that allotment of an adjacent piece of land was made out by marking it as Plot No. 8-B and compiled a separate file.
4. That Para No. 4 is correct to the extent of allotment of Plot No. 8-A/1 in the name of Muhammad Yasin dated 14.06.1990. It is also correct that the writ petition "titled Khurshid Anwar vs. Mayor Municipal Corporation and others" was filed on 12.03.1992 which was directed to Respondents No. 9 and 10 and MDA on 22.09.2006 for revising of plots mentioned in the preceding pares.
5. That Content No. 6 is correct to the extent of transferring files of Plot Nos.8-A, 8-B and 8-A/1 in M.D.A for revising in compliance with the judgment dated 22.09.2006 passed by this Court. It is also correct that M.D.A oiler revising and scrutinizing records of plots passed a detailed order on 14.02.2012, whereby it was held that Plot No. 8-A/1 is an independent plot and the petitioner is an exclusive owner of Plot No. 8-A/1. The revising of Plot No. 8-A/1 has been made twice by the answering respondents. Respondent No. 16 filed a review petition against the order dated 14.02.2012 in M.D.A on 10.01.2015, which was dismissed.
6. That content No. 6 is correct to the extent of filing a civil suit by Respondent No. 15, which was dismissed, therefore, Respondent No. 15 approached District Court Mirpur and before this Court in a civil revision.
7. That the content reply No. 7 is correct to the extent of Respondent No. 15 submitted an application before the Commission of Inquiry during the pendency of civil revision petition and status quo, no notice of hearing was issued to the petitioner in respect of an application submitted by the Respondent No. 15.
14. It further reflects from the record that on the application of Respondent No. 15, the concerned respondents/authority is going to revise again the impugned plot i.e Plot No. 8-A/1, whereby in other connected writ petition, the petitioner has also challenged the impugned order issued by the respondents/MDA dated 01.06.2019, through which a sub-committee has been constituted by the MDA, (Estate Management department) to probe into the matter in detail.
15. As adumbrated answering Respondents No. 9, 10 and 7 have already admitted the stance of the petitioner in their written reply and have also regularized the Plot No. 8-A/1 in favour of the petitioner. Relevant Pares of written arguments offered by the Respondent No. 9 and 10 are reproduced as infra:
16. In juxtaposition the private Respondents No. 11 to 16 have vehemently contended in written arguments offered by them that matter is being probed by the Allotment Committee wherein the proceedings are pending disposal and entire proceeding are being carried out in light of the judgment of the Hon'ble Supreme Court of AJ&K dated 24.04.2017 as well as in furtherance of the inquiry report dated 01.01.2018 and 16.03.2018.
17. At the outset stance taken by the official quarters is seemingly tricky and vague, according to the version of Respondents No. 11,12,13 the matter is pending adjudication before the Allotment Committee.
18. High Court normally ovoid to take up any mutter qua adjudication, where the matter involved a factual inquiry and scrutiny of respective claims of the parties. Factual inquiry is a track of evidence where rival claims are probed by collecting evidence.
19. Writ jurisdiction is not a normal jurisdiction. High Court cannot assume the function of the Civil Court by stepping in the arena of factual inquiry.
(Underling is mine)
20. Allotment Committee has not been arrayed as party in the list, thus, I am inclined to array the Allotment Committee of MDA as party in the writ petition and direct the relevant competent authority/ including the Allotment Committee to do needful qua deciding the matter in transparent fashion and judicious manner completely in accordance with law by providing full opportunity of hearing to both the parties within 03 months.
21. Writ petition stands disposed of accordingly. File shall be kept in archive.