' The petition is addressed against the order of allotment of plot No,212- E/3, measuring 120 Sq.
Yards (12' x 90'), situate in Sector C-3, Mirpur city, made on 21st March, 1990.
2. It was averred that Plot No,212-E/1 was initially allotted in the name of Muhammad Bashir, ancestor of the petitioners, on whose death the allotment was transferred in the name of the petitioners on 27th October, 1986. The price of the plot was paid and its possession was acquired accordingly. The plot of the petitioners was a corner plot. Adjacent to the said plot, a rejected place in the shape of ravine used for water-flow, was available. The aforesaid rejected place was marked as a separate Plot No,212-E/3 (12' x 90') measuring 120 sq. Yards and the same was allotted to respondent No,5. This order is assailed on the following grounds:--
(i) That respondents Nos. 1 and 2 were not empowered under law to alter the Master Plan, by marking separate plot in dispute;
(ii) that plot of the petitioners was a corner plot. The petitioners paid its price. Thus, by marking the rejected place as separate Plot No,212-E/3, the status of the plot of the petitioners was reduced.
This was done without lawful authority; and
(iii) that the allotment in question was made in disregard of the rules and regulations applicable to the said allotment.
' In his written statement, respondent No,5 admitted the allotment of the petitioners of Plot No,212- E/1 and also admitted that the plot of the petitioners was a corner plot. All other averments were repudiated and it was averred that the respondent acquired allotment on account of his possession.
3. The learned counsel for the petitioners argued:--
(i) that according to the Master Plan, the land in dispute was used as ravine for water-flow. Thus, the Chairman of the Committee was incompetent to modify, alter or revise the Master Plan and to mark a new plot adjacent to the plot of the petitioneRs, Moreover, according to the learned counsel, in case the Master Plan was modified, the allotment was to be made by the Allotment Committee which was competent to modify the Master Plan.
(ii) That respondent No,5 was not in unauthorised possession of the plot. According to the report of the staff of the Authority, the land was reserved as 'Green Plot', not available for allotment to any person.
' Ch. Muhammad Taj, the learned counsel for the respondent No,5 controverted the aforesaid points and argued that respondent No,5 was in unauthorised possession of the site in dispute.
Thus, under the provisions of Rule 16, the Chairman of the Committee was competent to regularise the allotment.
4. Rule 3 postulates the scheme of development of estate. Under Rule 4, it was provided that residential, commercial and industrial plots shall be developed by the Committee for allotment to suitable persons. Under the proviso, the Committee was empowered to dispose of awkward piece of land by allowing it to be merged into adjoining plot, on such terms and conditions as may be determined by the Committee. It was further provided under rule 4 that an open space or rejected piece of land may be developed into commercial or residential plot or for other purposes described therein. When an open space or rejected piece of land was developed into commercial or residential plot, the Committee was empowered to allot the same in the prescribed manner, to suitable persons.
5. Rule 16 contemplates the scheme of regularisation of encroachments etc. ' This rule is an exception to the main scheme of development and allotment of residential and commercial plots. According to this rule, the Chairman was vested with the discretion to regularise the encroachments subject to the provisions of Master Plan and Local Government Ordinance.
Thus, an encroachment made on any piece of Government land and rejected piece of land, was to be regularised in the manner providcd:--
(i) When the person who made the encroachment:
(a) fell in criteria of persons listed under rule 9 (2) i.e, he was a Mangla Dam affected person or son of Mangla Dam affected person;
(b) was a resident of District Mirpur;
(c) belonged to group of professional persons,...................
(d) was national of Jammu and Kashmir State; and
(e) was recommended for allotment by the Prime Minister out of his special reserved quota;
(ii) the encroachment did not affect the Master Plan and original planning;
(iii) the encroachment did not affect any road, plot or areas reserved for Government buildings;
(iv) the encroachment effected prior to June 30, 1981, was sufficiently approved by the official records; and
(v) the encroachment was not against the approved housing scheme and more than one Kanal.
' These restrictions were enforced on the discretion of the Chairman while regularising the encroachment. In case the encroachment in question was effected by either of the aforesaid restrictions, it could not be regularised by the Chairman under the provisions of rule 16.
6. In the present case, it is undenied that according to the Master Plan of the area of Sector C-3 the plot of the petitioner was marked as corner plot. It was shown as such in the allotment order and the price was also accordingly received by the allotting authority. The respondent in his written statement admitted the aforesaid position in para 3. Thus, by virtue of impugned action of the Chairman, the plot of the petitioner was obviously affected as its status and position was reduced.
The order of the Chairman was in transgression of jurisdiction conferred on him under rule 16.
7. The term "rejected place" was defined in rule 2 (h) as:-- " 'REJECTED PLACE' is a location in an estate which has been left outside of any plot, road or other public amenities which includes ravines and dry nullah beds."
' The record shows that the site of plot in dispute was, in fact, a ravine for water-flow. Thus, it was covered by the definition of rejected place.
8. In order to succeed on the ground of regularisation of encroachment, it was enjoined upon respondent No,5 to satisfy that the encroachment was made by him prior to the date of its allotment. Moreover, the encroachment was available for its regularisation within the scope of provisions of rule 16. The attention of the Court was invited to a document appended with written statement relating to delivery of possession of the plot. The plot was allotted on 21st March, 1990.
The possession was shown to have been delivered on the same day vide "Qabza Chit" No,0700. On the back of the chit, the allottee signed it as acknowledgement of delivery of possession in presence of 2 witnesses whose names were also entered therein. This document was appended with the written statement. It goes a long way to discredit the claim of the respondent that allotment in question was made in his name by virtue of his encroachment made prior to the date of allotment of the plot. Thus, in presence of proof referred to above, it is not found a case of encroachment and hence it is not covered by the provisions of rule 16 which empower the Chairman of the Committee to regularise an illegal encroachment. The order of allotment was obviously without jurisdiction, as such untenable.
9. The attention of the Court was invited to the point that the respondent has already raised construction over the site in dispute. This point does not deserve its resolve as it was not part of the controversy raised by the parties. Besides, the writ petition was admitted for regular hearing by this Court on 10th April, 1990. The interim injunction for status quo was also issued. The respondent acquired permission for construction on April 4, i.e, 6 days before the issuance of the interim injunction. In case he started the construction on the same day, it could not be completed within 6 days. Thus, the construction carried during the pendency of writ petition was violative of the order of the Court. It carried no value.
10. The record appended with the written statement reflects that the plot in dispute was acquired by the respondent for residential purposes. Subsequent to allotment, he applied for permission to change the object of allotment (land use) from residential to commercial use. The application was accepted and necessary permission was granted on 31st March, 1990 vide No,M.M.C./624/90. On acquisition of permission for commercial use of the land (plot), the building plan was also submitted for approval of the authority. According to the sanctioned plan appended with the written statement, the ground floor was used for 4 shops and on first floor residential flats were to be constructed by the respondent. This is just to point out that the allotment in question was a disguise for the allotment of the plot for commercial purposes.
11. An open space and rejected piece of land was to be developed for residential or commercial plots only by the Allotment Committee in the manner of authorised development scheme. When such plots were developed, the Allotment Committee alone was empowered to invite applications for allotment of the plots from the persons desirous for such allotments. The Committee was empowered to dispose of the plots as provided under rule 6. This is just to suggest that the Chairman of the Committee was not empowered to dispose of the plots desired to be used for commercial purposes, by virtue of exercise of powers under rule 16. Therefore, the allotment of respondent No,5 was patently deceptive and violative of provisions of rules applicable to allotments of plots. This is another factor which invalidated the allotment of the respondent.
12. The petition is, therefore, accepted and the impugned order of allotment is set aside. No order as to costs.