1. ' SARDAR SAID MUHAMMAD KHAN, CI-This appeal has been directed against the judgment of the High Court dated 23-114991, whereby the writ petition filed by the appellant, herein, was dismissed.
2. ' Brief facts of the case are that the appellant is a Mangla Dam affectee.
3. ' Applications were invited by the respondents Nos. 1 to 3 for the allotment of the plots, including the disputed plot numbered as 11/D, situated in sub-sector B-5, Mirpur. The case of the appellant is that the aforesaid plot was one of the plots which were available for the allotment and was to be allotted according to the provisions of rules known as Mirpur Municipal Committee, Regulations for Development and Disposal of Plots/Estates, 1985, Consequently the appellant applied for the allotment of the plot in question which was also accompanied by a draft in the sum of Rs,6,320 as earnest money, However, subsequently, the appellant came to know that the plot in question was allotted to Dr. Zafar Iqbal, respondent, as an 'awkward' land under the relevant rules on September 28, 1987, by the Chairman of the Municipal Committee. The case of the appellant is that in fact the disputed piece of land was converted into a plot in pursuance of regular scheme and the Chairman had no authority to allot or sanction the merger of the same into a plot of the respondent as an `awakward' land. He has contended that even otherwise the plot was not adjacent to the plot allotted to respondent, Zafar Iqbal, and does not fall within the category of 'awkward' land. He has further alleged that in fact the plot was not finally allotted to the respondent on September 28, 1987 but was allotted on 10th October, 1988, after the application for allotment of the appellant. According to the learned counsel for the appellant the order of the Chairman treating the plot in, question as an `awkward' piece of land vide order dated 28-9-1987 cannot be regarded as an order of allotment of plot or for that matter the order of approval of merger of 'awkward' land into a plot which already stood allotted to respondent No,4. The High Court has taken the view that the question as to whether the piece of land in question was an 'awkward' land or not, is a question of fact and in view of the order passed by the two Chairmen of the Municipal Committee of the time, in the year 1987 and other in the year 1988, it cannot be said that the plot in question was not an 'awkward' piece of land but was a plot which was available for allotment to a deserving claimant under the relevant rules in pursuance of the general scheme of the allotment.
4. The High Court did not deal with the question as to whether the Chairman of the Committee had the authority to take out a plot from the 'approved scheme', treat it an 'awkward' land and permit its Mergers as an 'awkward' land. It has been vehemently argued that in the first instance the piece of land which stood numbered as Plot No, 11/D could not be treated to be an 'awkward' place in view of the definition of the words 'awkward piece' given in the relevant rules; in alteranative, even if it can be regarded to be an 'awkward' place despite the fact that the same was converted into a plot, that could not be done by the Chairman alone but only the Committee was competent to do so. The moot point involved in the case is as to whether in view of the definition of `awkward piece' given in the aforesaid rules, the land comprising the plot in question can be regarded to be an 'awkward' land under the relevant provisions of the rules. For the sake of convenience the definition of the words 'awkward piece' may be reproduced as under, which is given in Rule 2, sub-rule (1) (b) of the aforesaid Rules of 1985. The same is as under:-- `Awkward Piece' means a piece of land adjoining to any plot or farm, which cannot be formed into a separate plot or farm and can only be utilized by merging it into the adjoining plit/farm;"
5. It is evident that only that piece of land can be regarded to be an `awkward piece' which cannot be formed into a separate plot or farm and can only be utilised by merging it into the adjoining plot/farm. It is clear from the plain reading of the definition that the piece of land which is capable of being A made a plot or can be utilized as a separate plot cannot be regarded as an `awkward piece' of land and the Chairman or for that matter the Committee has no power to dispose of it as an 'awkward piece'. It is condition precedent that the piece of land should be of such nature that could not be converted into a plot/farm in view of its location or situation.
6. ' The next question which needs determination is that even if it is assumed for the sake of argument that the plot in dispute could be regarded as an 'awkward piece' of land in view of the aforesaid rule, could it be taken out of pool of general plots and regarded as an 'awkward' land. The very scheme of the Rules is clear enough. Rule 16 of the Mirpur Municipal Committee, Regulations for Development and Disposal of Plots/Estates, 1985, was referred to by the learned counsel for the respondents in support of his contention that the Chairman was competent to pass the impugned order. Rule 16 is reproduced as under:--
16. "Regularization of Encroachments etc. ' The Chairman may regularise the encroachments subject to the provision of Master Plan and Local Government Ordinance on any piece of Government land/rejected area in a prescribed manner; provided that:--
(i) The person who has encroached upon the Government land or rejected area, falls in criteria under clause 9 (2) above,
(ii) the encroachment does not affect the Master Plan/Original, Planning;
(iii) the encroachment may not affect any road, plot, or areas reserved for Government buildings, like Hospitals, Schools, Dispensaries, or any other public institution or areas reserved for disposal works sewers of water supply lines, etc.;
(iv) the encroachment which has been effected prior to 30-6-1981 and the same is sufficiently approved by the official records;
(v) the encroachment is by no means against the approved housing scheme and more than one kanal."
7. ' It may be stated that rule 16 deals with a 'rejected place' which is defined in sub-rule (1) (h) of rule 2 of the rules and not 'awkward piece' which is defined in sub-rule (1) (b) of rule 2 as has been already stated. The place in dispute has been given to respondent No,4 as an 'awkward piece' and not as `rejected place' as is evident from the relevant orders dated 28-9-1987 and 10-10-1988.
8. However, under clause (ii) of rule 16, encroachment should not affect the Master Plan or the Original Plan. Under clause (iii), the encroachment should not affect any road, plot or area reserved for Government buildings etc.; and under clause (v), encroachment should by no means be against the approved housing scheme and be more than one Kanal. It is evident that the land already given the shape of a plot and available for allotment could not be regarded to be 'rejected place' under rule 16, referred to above. So far as the power of the Committee is concerned, rule 3 of the Rules envisages that the Committee has power to develop the piece of land or any property vesting in it but it is condition precedent that such utilization of land should not affect the sanctioned plan of the plots. Sub-rule (2) of rule 3 envisages that the Committee may prepare mini-development scheme for obtaining development grants from the Government or sponsor, etc. Under sub-rule (3) of rule 3, again it is only the Committee which has been invested with the powers of developing and improving any existing 'alma or locality; and under sub-rule (4) of rule 3, no other person or agency other than the Committee is competent without the prior sanction of the Committee to develop any estate within the specified area. It is pertinent to state here that under proviso to rule 4 an 'awkward' piece of land can only be disposed of by the Committee by allowing its merger into a plot or farms etc. And not the Chairman of the Committee. For the sake of convenience, proviso to rule 4 is reproduced as under:-- "Provided that an 'Awkward' piece of land may be disposed of by the Committee, by allowing it to be merged into the adjoining plots/farms etc. On such terms and conditions as may be determined by it, or it may be utilized by the Committee in any other manner."
9. It is crystal clear from the aforesaid proviso that even an 'awkward piece' of land can only be disposed of by the Committee and not by. The Chairman alone. The above state of law clearly shows that even if it is assumed for the sake of arguments that the piece of land in question can be regarded as an 'awkward piece', it could be dealt with by the Committee and not by the Chairman as has been done in the present case. Rule 16 deals with 'rejected area' which the Chairman of the Committee is competent to regularise if the same falls within the purview of rule 16, but if the land falls within the definition of the words 'awkward piece' then it can be disposed of by the Committee and not by the Chairman of the Committee. The word 'Committee' has been defined in rule 2, clause (1) (a) meaning The Mirpur Municipal Committee constituted under the Local Government Ordinance, 1979 as amended from time to time'. Thus, the view taken by the High Court that `awkward piece' could be regularised by the Chairman alone is clearly violative of the rules and is not tenable.
10. ' The learned counsel for the respondent No,4, Ch. Muhammad Taj, has vehemently argued that under rule 16, the Chairman had ample power to regularise such pieces of land because there is no bar to the exercise of the power of the Chairman under the aforesaid Rules. It may be stated that the question of 'bar' does not arise because the power of Chairman even in case of the 'rejected places' is circumscribed by the condition enumerated under rule 16 of the aforesaid Rules.
11. ' Next, it has been half-heartedly contended by the learned counsel for respondent No,4 that the appellant is not an 'aggrieved' person because the plot was allotted to respondent No,4 in the year 1987, when the appellant had not yet submitted any application for the allotment of the plot in dispute. Assuming for the sake of argument that the order passed in September, 1987 would be regarded to be a final order in the matter, the fact remains that plot in question was available for allotment to any deserving person from public at large. Thus, if the order of Chairman dated 28-9- 1987 was violative of the law and without jurisdiction, that would not debar the appellant from seeking the allotment of the plot in question. It is not disputed that the appellant falls within one of categories which have been declared entitled to allotment of plots in Mirpur Town. It is true that no right in the strict juristic sense vests in him, but clearly the appellant is a person who has personal interest that the respondents should not perform their legal duties in a manner not provided by law because if the plot in question becomes available for allotment to a deserving person it is certainly an advantage or benefit which would accrue to the appellant. If any authority is needed on this point we may refer to Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 S.C. 223) and particularly the following passages from the judgment of Hamoodur Rahman, CJ., who spoke for the Court in that case:-- "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise.
12. ' A corporation entrusted with the task of formulating town improvement schemes had appropriated a particular site for the use of the public as .a ,market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped for. The Superme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition."
13. As a result of the foregoing the appeal is accepted and the order of the 10 High Court is set aside.
14. The writ petition filed by Maqsood Hussain stands accepted and the allotment in favour of Dr. Zaffar Iqbal is held to have been made without lawful authority and is of no legal effect. The concerned authorities may consider the application for allotment by the appellant, herein, under the relevant rules. There would be, however, no order in respect of the costs of this appeal.