' This order shall dispose of both the writ petitions titled above as in both of them the one and the same order of the Chairman, M.D.A./respondent has been challenged.
2. The established facts on the record giving rise to the above petitions are that commercial plot No,51-C measuring 1120 sq. Ft. (16' x 60 + 80'/2) situate in Sector C-1, Mirpur Town, was allotted to Malik Muhammad Rashid, petitioner in writ petition No,22 of 1986 (hereinafter referred to as Mr. Muhammad Rashid, petitioner) by the Allotment Committee on 20-2-1972 under the New Mirpur Town (Allotment of Land) Act, 1964.
3. The above allotment of plot in the name of Muhammad Rashid, petitioner was challenged in appeal before the then Appellate Authority through separate appeals by Chaudhry Muhammad Sadiq, petitioner in writ petition No,23 of 1986 and respondent in writ petition No,22 of 1986 (hereinafter referred to as Muhammad Sadiq, respondent), Subedar Fazal Hussain and Muhammad Ayub but before the same could be disposed of, the aforesaid Act was repealed and a new law on the subject known as the "Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974" replaced it, under which all appeals' and other proceedings pending with the Appellate' or any other authority in respect of orders of allotment, stood transferred to the Allotment Committee for hearing and disposal. The Allotment Committee, headed by Chaudhry Sohbat Ali, a Minister in the then Government of Azad Jammu and Kashmir, decided the above appeals against the allotment of the petitioner Malik Muhammad Rashid in its meeting held on 26- 12-1975 by dismissing the same. Later, the Allotment Committee, in its meeting held on 15-11-1981, allotted 3 marlas land out of the said plot in the name of Chaudhry Muhammad Sadiq, respondent on his application made under the Special Regulations. But ultimately, the above three appeals including that of Ch. Muhammad Sadiq, respondent against the allotment of plot in the name of Malik Muhammad Rashid, petitioner, were disposed of by the Chairman-, Mirpur Development.
Authority in his capacity as Revising Authority vide the order impugned in the above writs whereby the same were dismissed but at the same time the allotment of Malik Muhammad Rashid, petitioner was reduced to a plot of the size of 32' x 16' (512 Sq.Ft.) from that of (16' x 60+80/2) 1120 sq.Ft) and a further direction was made that the remaining area of the plot in question be inspected by the Town Planner and the Member (Technical) M.D.A. And if they were satisfied that a suitable plot can be marked out of it, then proceedings for allotment of the same in the name of Muhammad Sadiq, respondent may be taken under rules.
4. Feeling aggrieved by the above undated order of the Revising Authority, both the petitioner Malik Muhammad Rashid and the respondent Ch. Muhammad Sadiq have challenged it in their separate above writ petitions; Malik Muhammad Rashid, petitioner has challenged its that adverse part which has the effect of reducing the size of the plot allotted to him, while the respondent, Ch. Muhammad Sadiq has challenged it to the extent it had dismissed his appeal and maintained the allotment in the name of Malik Muhammad Rashid, petitioner to the extent of the plot of the size of 16' x 32'.
5. I have heard the learned counsel for the parties and have also gone through the record of the case. The counsel for the petitioner Muhammad Rashid, has contended that the Revising Authority had no power to reduce the size of the plot allotted to the petitioner, Muhammad Rashid by the Allotment Committee and could only look into the entitlement of the petitioner to its allotment under the relevant rules; that no standard size of a commercial plot is laid down under the relevant rules and thus the very basis on which the size of the plot of the petitioner was reduced, was legally non-existent.
6. The learned counsel for the respondent, on the other hand, has contended that the impugned order is unlawful and without authority inasmuch as Brigadier (Rtd.) Raja Muhammad Akbar Khan had ceased to be Chairman Mirpur Development Authority, on 19-4-1986, the day on which the impugned order was made. It is further contended by him that the Allotment Committee headed by Chaudhry Sohbat Ali had already disposed of the appeal of Ch. Muhammad Sadiq, respondent against the order of allotment of the plot in the name of the petitioner, Muhammad Rashid, vide its order dated 2-5-1976 as is evident from the document Annexure "E" filed with the writ petition of the said respondent and, as such, no further decision by the Revising Authority in it was lawful. It is also contended by the learned counsel for the respondent that the Allotment Committee again, vide its order dated 5-11-1981, had restored the allotment of the plot made in favour of the petitioner earlier by the Allotment Committee and referred to above; that the Allotment Committee had no power to allot the commercial plot in question to Muhammad Rashid, petitioner as the same was not a marked plot but was only an open space at the time of its allotment and that the petitioner Muhammad Rashid had applied for a commercial plot of the size of 16' x 32', for which reason the allotment of plot in excess of that size was illegal and without justification. It is further contended by the learned Counsel for the respondent, Muhammad Sadiq that the judgment of the High Court in which the allotments made by the Allotment Committee headed by Chaudhry Sohbat Ali were declared unlawful, is not applicable to the appeals filed by the said respondent as it did not declare the Allotment Committee headed by Chaudhry Sohbat Ali to be incompetent to decide appeals transferred to it for decision under the Ordinance of 1974.
7. I have given my due consideration to the above contentions of the learned counsel for the parties, after which I am of the opinion that both the above writ petitions have no merits and, as such, need dismissal. As regards the contention of the learned counsel for the petitioner, Malik Muhammad Rashid that the Revising Authority had no power to reduce the size of the plot allotted to him by the Allotment Committee and it could only look into the entitlement of the petitioner to the allotment of the plot, has no substance in it. It is settled law that an Appellate authority has the same powers as are possessed under law by the authority below whose order is impugned before it. The Allotment Committee', in this case, was not bound to allot the plot of the size of 1120 Sq.Ft. To the petitioner, Malik Muhammad Rashid and had the discretion to make allotment to him of a plot of the size of 32' x 16', as has been done by the Revising Authority by virtue of the impugned order.
As a matter of fact, the petitioner, Muhammad Rashid had only applied for allotment of plot of the size of 30 x 16' as is evident from Annexure 'A' filed with the writ petition of Ch. Muhammad Sadiq, respondent. When he had asked for only a plot of the size of 30' x 16', the Allotment Committee had done undue favour to him by allotting a plot more than double in size than applied for by him.
Muhammad Rashid, petitioner had applied for allotment of the plot for the construction of shop which was allotted to him and in my view, the plot measuring 32' x 16' is quite sufficient for the said purpose. Thus, by reducing the size of the plot, Appellate Authority has committed no illegality which may need rectification by interference by this Court in exercise of its writ jurisdiction which, I need not say, is only a discretionary one. If no particular size of a commercial plot is prescribed by the relevant rules governing the allotment of commercial plots, then the allotting authority or its appellate authority has the discretion to allot any size of plot to a claimant considering his requirements and the availability of plots in a particular vicinity or locality. Thus, there exists no ground for making the declaration prayed for that the Revising Authority in its capacity as the Appellate authority had no power to reduce the size of the commercial plot allotted to the petitioner, Malik Muhammad Rashid, by the Allotment Committee.
8. Similarly, the contentions of the learned counsel for Ch. Muhammad Sadiq, respondent made in support of his writ petition are deviod of any force. His contention that the impugned order was made and announced on 19-4-1986 is not supported by any evidence on record of the file. It is true, as is evident from the copy of the impugned order, Annexure 'A' with the writ petition of the petitioner, Muhammad Rashid, that the judgment impugned in the above writ petitions does not bear any date on which it was written. However, from the above copy, it appears that Muhammad Sadiq, respondent had applied for the copy of the impunged order on 19-4-1986 which was delivered to him by the Copying Agency on the same day. It was for Muhammad Sadiq, respondent to prove that the impugned judgment was written by Brig: (Rtd.) Muhammad Akbar 'Khan in his capacity as Chairman, Mirpur Development Authority, after his relinquishment of charge of the said post which according to the record produced by the respondent, is 17-4-1986.
The presumption 'would be that the said Chairman had written the above judgment while he held the office of Chairman, M.D.A. And the mere fact that the respondent had applied for and received the copy of the impugned order on 19-4-1986, does not go to prove that it was also written on the same date.
9. The contention of the learned counsel for the respondent, Ch. Muhammad Sadiq that the impugned order is unlawful because his appeal against the allotment of plot to the petitioner Malik Muhammad Rashid had already been decided in his favour inasmuch as the plot allotted to Muhammad Rashid, petitioner was divided into two equal plots and one of them was allotted to him, is not factually correct. From the document filed as 'RA' by Muhammad Rashid, petitioner, with his written statement in writ petition No,23 of 1986 above, it is established that the Allotment of Land Committee, in its meeting held on 26th and 27th December, 1975, had dismissed the appeal of Muhammad Rashid, petitioner as well as other two appeals filed against the order of the Allotment Committee, allotting the plot in question to Muhammad Rashid, petitioner. Thus, from the above document, the respondent Muhammad Sadiq's appeal against the order of allotment of the plot in the name of Malik Muhammad Rashid, petitioner, stood dismissed. However, the above judgment of the Allotment Committee dismissing the appeal of Muhammad Sadiq referred to above, was incompetently made as the Allotment Committee headed by Chaudhry Sohbat Ali had no power to dispose of the appeals against the allotment orders made by the Allotment Committee under the Allotment of Land Act of 1964. The judgment of the High Court made in certain writ petitions on 28-2-1977 equally applied to the appeals that stood transferred to the Allotment Committee for decision under the Allotment of Land Ordinance, 1974. If the Allotment Committee headed by Chaudhry Sohbat Ali was not competent to make allotments under the Allotment of Land Ordinance, 1974, then equally the said Committee was not empowered to decide appeals which stood transferred to it under the said Ordinance, as the ratio decidendi of the aforesaid judgment of the High Court was fully attracted to the appeals as well.
10. So far as the contention of the learned counsel for the respondent that half of the plot in question stood allotted to Muhammad Sadiq, respondent by virtue of the order of the Chairman Allotment Committee dated 2-5-1976 and that of the Allotment Committee dated 15-11-1981, is concerned, it has also no force. The above orders do not create any legal right of Muhammad Sadiq, respondent in the plot in question. The plot had already been allotted by the competent Allotment Committee to Malik Muhammad Rashid, petitioner and the Allotment Committee, after the enforcement of Ordinance of 1974, was only seized with the appeals against the aforesaid allotment of plot in the name of Muhammad Rashid, petitioner which stood transferred to it under the provisions of the said Ordinance So the question of allotting any plot by the Allotment Committee on till application of Muhammad Sadiq, respondent did not arise. The document Annexure 'H' with the writ petition of Muhammad Sadiq, respondent shows that the respondent had applied for the allotment of the plot in question under Special Regulations and he was allotted the same under the said Regulations. The plot under discussion was not available for allotment under Special Regulations and, as such, its allotment under Special Regulations was unlawful and without jurisdiction.
11. Ch. Muhammad Sadiq, respondent has not been able to produce any evidence showing that he had preferential right of allotment to the plot in question as compared to Malik Muhammad Rashid, petitioner. He was not even an applicant for the allotment of the said plot when it was allotted to Malik Muhammad Rashid, petitioner in the year 1972 by the then Allotment Committee.
12. For the reasons stated above, both the above writ petition is dismissed with no order as to costs.
THE END REVENUE DECISIONS